kenya wildlife crimes case digest - wildlifedirect.org · wildlife crimes case digest : 2016 iii...

Kenya Wildlife Crimes Case

DIGEST2016

Wildlife Crimes Case Digest : 2016 i

Acknowledgement .................................................................................................................... vii

Foreword ................................................................................................................................... ix

Cases Reported

CourtsentencedaccusedtoservetwentyyearsimprisonmentandafineofKsh20million foracrimeofdealingandpossessingIvory Republic v Feisal Mohamed Ali Alias Feisal Shahbal & 5 others Criminal Case No 1098 of 2014 July 22, 2016 .......................................................................... 1

AnappealtotheCourtofAppealcannotbesuccessfullylodgedwithoutfilingthenoticeofappealFeisal Mohamed Ali Alias Feisal Shahbal v Republic Criminal Application No 2 of 2015 December 4, 2015 ............................................................ 3

WhatwouldamounttoPossessioninaCriminalTrialforPossessionofWildlifeTrophiesRepublic v David Njeru Mwathi & 2 others Criminal Case No 611 of 2014 December 15, 2015 ................................................................. 5

DuplicityofchargesamountstoanillegalityandisremediedthroughrevisionMahat Sangweyhei Kedhiye v Republic Criminal Revision No 5 of 2015 November 30, 2015 ............................................................... 8

DefiningaDealerundertheWildlifeConservationandManagementActRepublic v John Kenteya Kaluo & another Criminal Case No 1625 of 2015 November 12, 2015 ............................................................ 10

RevisionordersgrantedinrespecttoachargeunderawrongsectionofthelawSimon David Harris & Another v Republic Revision No 99 of 2013 October 29, 2015 ............................................................................. 12

AppellateCourtaffirmsconvictionofanhonorarywardenforWildlifeCrimesPeter Mwangi Kariuki v Republic Criminal Appeal No 57 of 2012 October 21, 2015................................................................. 13

Bailapplicationgrantedtoanaccusedpersonconvictedofbeinginpossessionofgametrophycontrarytosection95oftheWildlifeConservationandManagementActBernard Muigai Mutambu v Republic Miscellaneous Criminal Application No 307 of 2015 October 14, 2015 ...................................................................... 16

AccusedconvictedforbeinginpossessionofgametrophyK P Marsabit v Kosi Mio Galgalo Criminal Case No 726 of 2015 October 2, 2015 .................................................................... 17

AccusedacquitedforbeinginpossessionofgametrophyState v Augustus Mwangia Kisiu & another Criminal Case No 693 of 2013 September 1, 2015 ................................................................ 18

TableofContents

Wildlife Crimes Case Digest : 2016ii

MagistrateCourtslackjurisdictiontoreviewdecisionsoftheHighCourtRepublic v Feisal Mohamed and others Criminal Case No 166 of 2015 August 26, 2015 .................................................................... 19

Failureoftheinvestigatingofficertokeepamandatoryinventoryof theitemsrecoveredfromtheaccusedpersonwasnotfataltotheprosecution’scase

Republic v Tiapukel Kuyoni & another Criminal Case No 1447 of 2014 August 26, 2015 .................................................................. 21

Accusedpersonsconvictedfordealingingovernmenttrophieswithoutadealers’licenseRepublic v George Waithaka and another Criminal Case No 1921 of 2013 August 11, 2015 .................................................................. 24

AccusedfinedKsh20,000,000forbeinginpossessionofgametrophyRepublic v John Mugambi Murungi & 2 others Criminal Case No 673 of 2014 August 5, 2015 ...................................................................... 25

ProofofownershipofthepropertyofforfeitureisnotarequirementoranimpedimentforforfeitureRepublic v Wesley Kiprotich Korir & another Criminal Case No 950 of 2015 July 7, 2015 ........................................................................... 26

KenyaWildlifeServiceofficersshouldnotavoidactingoninformationrelevanttotheiroperationsRepublic v Joseph Kibet Langat & 2 others Criminal Case No 938 of 2014 June 30, 2015 ........................................................................ 27

KenyaWildlifeServicesOfficialsandthePolicehaveadutytoconductproperinvestigationsbeforechargingpersonsinCourt.Jean Wanjala Songoi & another v Republic Criminal Appeal No 100 of 2014 June 4, 2015 ....................................................................... 29

DifferencebetweenkeepingandbeinginpossessionofanimaltrophyRepublic v Joel Kiprotich Rotich & another Criminal Case No 970 of 2014 May 5, 2015 .......................................................................... 31

BeinginPossessionofwildlifemeatjustifiestheoffenceofbeinginwildlifegamingRepublic v Fredrick Mabiru Mogu & 3 others Criminal Case No. 522 of 2014 April 9, 2015 ........................................................................ 32

TheMagistrate’sCourthaspowertoallowordeclinewithdrawalofamatterbeforeitRepublic v Mike Ole Nkoruma & 2 others Criminal Revision No 93 of 2014 February 9, 2015 ................................................................ 33

AppellateCourtrevisesbondtermsfromKshs5MilliontoKshs30MillionsoastoalleviatethetemptationtofleeRepublic v Baktash Akasha Abdulla alias Baktash Akasha & 3 others Criminal Appeal No 178 of 2014 February 9, 2015 ................................................................ 35

Wildlife Crimes Case Digest : 2016 iii

ReasonableconditionsforamountofbailorbondtermsoughttobeconsideredwhengrantingbailorbondAbdi Mohammed v Republic Criminal Miscellaneous Application No 17 of 2014 December 17, 2014 .................................................................... 37

JurisdictionoftheHighCourttoreviewthedecisionsofthesubordinatecourtsarrivedatinexerciseoftheirjudicialpowers Republic v Baktash Akasha Abdalla & 3 others Criminal Revision No 54 of 2014 December 8, 2014 ............................................................. 39

AccusedpersonsconvictedofpossessionofgovernmenttrophiesRepublic v Eric Mugendi and another Criminal Case No 854 of 2013 December 1, 2014 ................................................................. 41

Canforeignersconvictedofbeinginpossessionofgametrophycontrarytosection95oftheWildlifeConservationandManagementActbeadmittedtobailpendingappeal?Ngo Hong Quan & 2 others v Republic Miscellaneous Criminal Application Nos 251, 252 and 253 of 2014 November 19, 2014 ............................. 42

Section92oftheWildlifeConservationandManagementAct,2013doesnotcreateanoffence.Mutisya Kiema v Republic Criminal Appeal 7 of 2014 October 8, 2014 ......................................................................... 43

ApropertyanticipatedforforfeiturecannotbesoldbytheownerlestthesalebecomescalculatedtodefeatjusticeRepublic v Domnic Gumo Criminal Case No 552 of 2013 September 26, 2014 .............................................................. 46

AccusedfinedKshs20milliononachargeofkeepingwildlifetrophiesRepublic v Simon Kiprotich Towett Criminal Case No 1414 of 2014 September 1, 2014 .............................................................. 48

TheTestimonyofacrucialwitnessisnecessarytoproveacasebeyondanyreasonabledoubtNachuri Lemuna v Republic Criminal Appeal 133 of 2012 June 30, 2014 .......................................................................... 50

Gametrophiesmustbeproducedandidentifiedasevidenceincourttoproveaconvictionofbeinginpossessionofagametrophy.Boniface Ngugi Wanjiru v RepublicCriminal Appeal 49 of 2014 June 25, 2014 ............................................................................ 52

AsentenceofoneyearimprisonmentfortheoffenceofenteringaNationalParkwithlivestockisexcessiveSaid Fara Abdi & 2 others v Republic Criminal Appeal 36 of 2014 June 5, 2014 .............................................................................. 54

Wildlife Crimes Case Digest : 2016iv

KenyaWildlifeServiceuniformedofficersnotundersupervisionoftheInspectorGeneraloftheNationalPoliceServiceKahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others Petition No 25 of 2013 November 12, 2013 ........................................................................... 56

ManagementofForeststobeinaccordancewiththeConstitutionJoseph Leboo & 2 others v Director Kenya Forest Services & another Environment & Land No 273 of 2013 October 1, 2013 .......................................................... 61

CircumstanceswhereanautomaticforfeitureordercanbeissuedRepublic v Mutinda Kitonyi Criminal Case No 1244 of 2013 September 19, 2013 ............................................................ 66

TheHighCourthasnopowerstoentertainamatterforrevisionofsentencewhennoappealislodgedBiemei Chen v Republic Criminal Revision No. 136 of 2013 September 7, 2013 .......................................................... 67

EffectsofpleaofguiltvisavisthepleaofnotguiltytoachargeEvans Obudo v Republic Criminal Appeal No 143 of 2011 June 14, 2012 ..................................................................... 69

EffectofordersgivenbyCourtwithoutfollowingtherulesofnaturaljusticeFrancis Mureithi Ndungu v Republic Revision Case No 27 of 2012 May 17, 2012 .......................................................................... 71

TheCourtsmaygiveordersinrespecttopropertyfoundonanaccusedpersonthathasnotbeenproducedasexhibitDavid Muigai Macheru v Kenya Forest Service & another Criminal Appeal No 333 of 2010 February 16, 2012 .............................................................. 72

Licenceestomunicipallanddonotownthetreesinthemunicipalland.Lucy Nduta Kamau v Republic Criminal Appeal No 81 of 2010 March 25, 2011 ................................................................... 75

HighCourthaspowerstovarythenatureofsentenceRotina Mkikuyu & another v Republic Criminal Appeal No 434 of 2010 February 15, 2011 .............................................................. 77

Factorstoconsideringrantingnon-custodialsentencinginwildlifecrimesEzekiel Kirinyet v Republic Criminal Appeal No 150 of 2010 October 29, 2010............................................................... 78

Section55(1)(c)oftheForestAct,2005doesnotrequiremandatoryforfeitureofsuititemstothestatePeterson Njue Njeru & another v Maralal Snr Resident Magistrate & 2 others Judicial Review No 64 of 2009 January 29, 2010 .................................................. 79

Wildlife Crimes Case Digest : 2016 v

AchargesheetmustcontainproperparticularsSamuel Macharia Mwangi & another v Republic Criminal Appeal 130 of 2007 & 131 of 2007 (Consolidated) 29, January 2009 ....................... 81

InstanceswheretheappellateCourtcaninterferewiththeconvictionandsentencingbythetrialcourtEvans Luka Tarimo & another v Republic Criminal Appeal Nos 267 & 268 of 2007 March 12, 2008 ..................................................... 83

CircumstanceswhereanautomaticforfeitureordercanbeissuedMuya v Republic Criminal Appeal No 61 of 2004 May 14, 2004 ....................................................................... 84

CrimesofStocktheftandtrespassingtheNationalParkKitifia v Republic Criminal Appeal No 76 of 1992 July 10, 1992 ........................................................................ 86

TheCourtCanReduceorIncreaseASentenceattheHearingofanAppealasonConviction John Kinyua Githinji v Republic Criminal Appeal No 55 of 2016 November 16, 2016 .............................................................. 88

Wildlife Crimes Case Digest : 2016vi

The Wildlife Crimes Case Digest was facilitated thanks to a generous contribution from the Bureau of International Narcotics

and Law Enforcement Affairs (INL).

Civil Society Organizations:

The Wildlife Crimes Case Digest was printed with

support from:

Government of Kenya:

www.spaceforgiants.org

OFFIC

E O

F TH

E DIR

ECTOR OF PUBLIC PROSEC

UTIONS

Wildlife Crimes Case Digest : 2016 vii

Disclaimer

The contents of this publication do not necessarily reflect the views or policies of UNODC, Member States, or contributory organizations, and neither do they imply endorsement.

The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of UNODC or the Secretariat of the United Nations concerning the legal status of any country, territory, city or area or of its authorities, or

concerning the delimitation of is frontiers of boundaries.

Wildlife Crimes Case Digest : 2016viii

Wildlife Crimes Case Digest : 2016 ix

ForewordbytheDirectorofPublicProsecutions

I am pleased to be associated with the publication of the first Wildlife Crimes Case Digest in Kenya. This Digest comes in the wake a new legal framework to fight wildlife crime in Kenya and brings to light both the wins and hurdles encountered by investigators, prosecutors and as judicial officers in implementing the Wildlife Conservation and Management Act, 2013.

The digest comprehensively consolidates key legal decisions in a wide array of issues, including; considerations in bail applications, appeals against decisions made, revisions, definition of terms, drafting of charges, jurisdiction, handling of exhibits and ancillary orders applicable in wildlife crime cases. It cannot be overemphasized that lack of sufficient public information on the substantive and the procedural aspects of the trail/legal process coupled with capacity challenges that prosecutors, investigators and judicial officers have to conquer to ensure efficient and effective delivery of justice. The digest therefore presents an important contribution towards the prevention, investigation, prosecution and adjudication of wildlife crime in the country, and indeed the region, and a valuable tool for disrupting criminal organizations engaged in activities of such nature.

The design and the content of this digest specifically focuses it as a useful tool in wildlife conservation and management and is intended for all court users, specifically; prosecutors, judicial officers, investigators and law students, in order to inform/sensitize readers on various facets of wildlife crime.

I recognize the support of the United Nation’s Office on Drug and Crime to the ODPP, in coordination with the Judiciary, the National Council for Law Reporting (NCLR), Kenya Wildlife Service (KWS), Kenya Forest Service (KFS) and Civil Society Organizations, notably; Space for Giants, Wildlife Direct, Africa Wildlife Foundation and Big Life Foundation for their cooperation and specific roles in the authorship of this unique piece of publication.

My Office sincerely thanks all the individuals and institutions for their contributions and feedback which no doubt enriched the contents of the Digest at every level of its development. Your dedication to the betterment of our Nation and the fight against crime is appreciated.

KERIAKOTOBIKOCBS,SCDIRECTOR OF PUBLIC PROSECUTIONS

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Wildlife Crime Case Digest : 2016 1

Republic v Feisal Mohamed Ali Alias Feisal Shahbal & 5 others

Court sentenced accused to serve twenty years imprisonment and a fine of Ksh20 million for a crime of dealing and possessing Ivory


Criminal Case No 1098 of 2014

Chief Magistrate’s Court at Mombasa July 22, 2016D Mochache PM

Evidence Law - circumstantial evidence- requirement for circumstantial evidence to succeed- whether the accused persons were guilty of dealing with and in possession of wildlife trophies-whether the prosecution discharged the burden of proof based on the circumstantial evidence heavily relied on in the entire caseEvidence Law - Standard of Proof in criminal cases-burden of proof- whether the prosecution discharged the burden of proof based on the circumstantial evidence heavily relied on in the entire case

Brief facts Six accused persons were charged with the offences of possession of wildlife trophies contrary to sections 95 read together with section 92 of the Wildlife Conservation and Management Act (hereinafter “the Act”) and the offence of dealing with wildlife trophies contrary to section 84(1) as read together with section 92 of the Act.

It was particularized that the 6th Accused (Feisal Shahbal) jointly with others was found dealing with wildlife trophies of an endangered species namely 314 pieces of the elephant tusks weighing 2152.45kgs without permit.

Evidence adduced pointed that the ivory was found at Fuji Motors East Africa Limited (5th Accused) and as such the charges were preferred to all the Company directors. The registrar of Companies produced records of Fuji Motor East Africa Limited, which showed the directors and their shares in the said company.

The circumstances revolving the offence revealed that the 6th Accused person hired a Canter, engaged the 1st Accused (Abdul Halim Sadiq Omar). He took control of the said Canter to and from certain Total Petrol Station. He parked the said Canter at the premises of the 5th Accused person between May 30, 2014 to June 3, 2014; he later drove the said canter to the same Total Petrol Station.

The 6th Accused re-engaged the 1st Accused to go to Total Petrol Station and handed over the Canter to the owner. It was later established that the Registration number of the said Canter (KAM 197F) was fake.

On the June 4, 2014 the police recovered ivory from the premises of the 5th Accused. The police then arrested the 1st to 4th Accused persons. The 6th Accused sneaked out and was later arrested in Dar es Salaam after six months by Interpol police.

Issuesi. Whether the accused persons were guilty of dealing with and in possession of wildlife trophies

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2 Wildlife Crimes Case Digest : 2016

ii. Whether the prosecution discharged the burden of proof based on the circumstantial evidence heavily relied on in the entire case.

Held1. Section 84 (1) of the Act prohibited a person from operating as a trophy dealer without

a licence. It neither created an offence nor prescribed the punishment for such offence. Section 92 prescribed a liability upon conviction to a fine of not less than Kshs 20 Million or imprisonment for life or both for any person who committed an offence in respect of an endangered species or in respect to any trophy of that endangered species.

2. There was no punishment that could be meted against an accused person pursuant to section 92 of the Act as it is. Section 84 (1) only prohibited one from operating as a trophy dealer without a license but did not provide that doing so amounted to an offence or prescribed the punishment. The implication of that omission was that the court would then be compelled to resort to section 92 of the Act to pass the sentence should it find any of the accused persons guilty of the offence of dealing with wildlife trophies without licence.

3. Circumstantial evidence is a very tricky thing. It could seem to point very straight to one thing but if one shifts a point of view a little, one would find it pointing in an equally uncompromising manner to something entirely different. The court must consider all existing facts, identify all inferences that can be drawn from them, then ascertain the innocence or guilt of the accused persons. For a case to be based on circumstantial evidence the following requirements: i. The circumstances, from which an inference of guilt is sought to be drawn, should be

proven beyond reasonable doubt.ii. The circumstances should be definite in pointing towards the guilt of the accused iii. The circumstance, taken cumulatively should form a chain so complete that there was no

escape from the conclusion that within all human probability the crime was committed by the accused and none else.

In the instant case the case was pointing towards the 6th accused person. 4. In a case depending on circumstantial evidence, each link in the chain ought to be closely and

separately examined to determine its strength before the whole chain could be put together and a conclusion drawn that the chain of evidence as proved was incapable of explanation of any other reasonable hypotheses except the hypothesis that the accused was guilty of the charge. In the instant case the 6th Accused person who was the controlling director engaged in the offence following the chain of all events. The prosecution had adduced all circumstantial evidence available in support of the case against the 6th Accused person.

1st -5th Accused Persons acquitted. 6th Accused found guilty of the offence of being in possession of wildlife trophies contrary to section 95 of the Act and sentenced to serve twenty years imprisonment and a fine of Ksh20 million..


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Wildlife Crimes Case Digest : 2016 3

Feisal Mohamed Ali Alias Feisal Shahbal v Republic

An appeal to the Court of Appeal cannot be successfully lodged without filing the notice of appeal.


Court of Appeal at Malindi December 4, 2015A Makhandia,J, W Ouko, J, K M’inoti, J

Criminal Application No. 2 of 2015

Criminal Procedure – Appeals – Criminal appeals to the Court of Appeal – Notice of Appeal - where an appellant lodges a motion in the Court of Appeal without filing the notice of appeal – whether an appeal can be said to be properly lodged without filing of the notice of appeal – Court of Appeal Rules, rule 59.

Brief FactsThe applicant and five others were charged before the Chief Magistrate’s Court with two offences under the Wildlife Conservation and Management Act, No. 47 of 2013. In the first count they were charged, jointly with others not before the court, with possession of wildlife trophies without a permit contrary to section 95 as read with section 92 of the said Act, while in the second they were charged with dealing in wildlife trophies without a license contrary to section 84(1) as read with section 92 of the same Act.

He pleaded not guilty to the charges. The prosecution opposed his application for bail or bond citing what it considered that from his antecedents, he was a real flight risk. The trial magistrate concurred with the prosecution and declined to order the release of the applicant on bail or bond pending trial. That ruling was subject of appeal in High Court which was dismissed because, among other things, the issues it raised had already been determined by the High Court earlier.

Three months after denial of bail by the trial court, the applicant renewed his application for bail before the same court, citing on the main changed circumstances, to wit, his health condition. The trial magistrate granted the applicant bond of Kshs 10 million with one surety, presumably for the same amount and imposed some other conditions regarding his passport and travel out of the court’s jurisdiction.

The Respondent aggrieved by the order applied to the High Court for an order of revision, to impeach the ruling of the trial court. The Court held that there were no changed circumstances between the dates of the two rulings of the trial court and that the risk of the applicant’s flight was real and constituted sufficient cause under the Constitution for denial of bail. Accordingly the judge revised the order for release of the appellant on bond. Subsequently, the applicant applied to the High Court for review of its order on revision claiming that the High Court had not properly appreciated the changed circumstances. The judge again did not see any merit in the application and dismissed the same.

Matters became a bit murky when the applicant next went back before the trial court and applied for bail, which was granted. Undeterred, the respondent immediately filed yet another revision application in the High Court raising a host of issues, among them whether the subordinate court could validly reverse the findings of the High Court that the applicant was a flight risk, and grant him bail. The High Court once again revised the order of the trial court and cancelled the order for the release of the applicant on bail.

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The applicant then made another application to the High Court, on the basis of various constitutional arguments, to review all its previous rulings and orders regarding his release on bail. The application was dismissed after finding that all the issues raised by the applicant had been considered and addressed before. The applicant then moved to the Court of Appeal for further appeal.

Issuesi. WhethertheapplicantcouldlodgeanapplicationintheCourtofAppealwithoutfilinga

notice of appeal.

Relevant Provisions of the LawCourt of Appeal Rules

Rule 59 (1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in six duplicate with the registrar of the superior court at the place where the decision against which it is desired to appeal was given, within fourteen days of the date of that decision, and the notice of appeal shall institute the appeal.(2) Every notice of appeal shall—

(a) state shortly the nature of the acquittal, conviction, sentence or finding against which it is desired to appeal; and(b) contain the address at which any documents connected with the appeal may be served on the appellant.

Held1. Itwasbylodginganoticeofappealthatapartyevincedintentiontoinvoketheappellate

jurisdiction of the Court under Article 164(3) of the Constitution. A person who has duly lodged a notice of appeal is an intended appellant and a duly lodged notice of appeal constitutes an intended appeal. By dint of rule 2 of the Court of Appeal Rules, appeal in relation to appeals totheCourt,includesanintendedappeal.Itisfortheabovereasonthatrule5(1)providedthata sentence of death could not be carried out before expiry of the time for lodging the notice of appeal, or where the notice of appeal had been lodged, before the appeal was heard and determined. On similar terms, under rule 5(2) (a), before a party could apply to the Court to be released on bail pending appeal or for suspension of execution of any warrant of distress pendingappeal,suchpartymusthavefiledanoticeofappeal.Asregardscivilmatters,rule5(2)(b)similarlyrequiredapartywhomovedtheCourtofAppealforstayofexecutionofanorder of the High Court, for an injunction or for an order staying further proceedings in the HighCourt,tohavefirstlodgedanoticeofappeal.

2. ItistritethereforethatthedeviceofthenoticeofappealinvokedtheappellatejurisdictionoftheCourtofAppeal.Thatisthecasewhethertheappealorintendedappealiscivilorcriminal. It is the notice of appeal, which initiates an appeal. In terms of Rule 59(1) of the Court of Appeal Rules the notice of appeal instituted the appeal. Where there is no appeal or intention to appeal as manifested by a lodged notice of appeal, the Court has no basis for meddling in the decision of the High Court. The lodging of a notice of appeal is not an irrelevantor ritualistic formality.Beyond initiating theappeal, italsoserves tonotify theprospectiverespondentthattheintendedappellanthasoptedtoescalatethelegalbattletothe appellate court, and to afford that party a fair opportunity to start preparing for the appeal, including mobilizing resources that may be required to defend or articulate its position.

3. Intheinstantcase,therewasabsolutelynodisputethattheapplicanthadnotfiledanoticeof appeal as required by rule 59. The applicant appreciated the fundamental importance of a


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noticeofappealbeforethejurisdictionoftheappellateCourtcouldbeinvoked.Yetdespitebeingofferedanopportunitytoregularizethesituationandprosecutefirstapplicationforleavetofilethenoticeofappeal,theapplicant’scounselinsistedonprosecutingtheapplicationforthesubstantivereliefsoughtbytheapplicantwithoutlodgingnoticeofappeal.

4. There was nothing unconstitutional about rules of procedure that regulated exercise of jurisdiction conferred by the Constitution or by any other law. That was particularly the case in situations like the instant case, where it had not been demonstrated that the procedural requirementorrulewasarbitraryanddevoidofanyrationalorlegitimatebasisinlightofthevaluesorprinciplesespousedbytheConstitution.Takentoitslogicalconclusion,theapplicant’s submission would mean that rules that regulated exercise of jurisdiction such as those that require certain actions to be commenced by plaint, originating summons, petition,etc.oreventhosethatsetthetimewithinwhichactionshouldbetaken,wereper se constrictiveofjurisdictionwerethereforeunconstitutional.Thatwasacasualandsimplisticway of looking at the issue.

5. A holistic interpretation of the Constitution and consideration of other constitutional principlesandvaluespertinenttojurisdictionsuchastherightoftheoppositepartytoknowthe case it had to meet, a reasonable opportunity for such party to prepare its response, and theconstitutionalimperativeontimelyresolutionofdisputes,amongothers,declaimsuchinterpretation.

6. If the bundle of documents required to be contained in a record of appeal were missing, theappealwas incompetentanddefective.Accordingly theCourtcouldnotexercise itsadjudicatory powers conferred by law or the Constitution where the appeal was incompetent and an incompetent appeal divested a court of jurisdiction to consider factual or legalcontroversiesembodiedintherelevantissues.

7. A court was competent, that was to say, it had jurisdiction when–a. itwasproperlyconstitutedasregardsnumbersandqualificationsofthemembersofthe

bench,andnomemberisdisqualifiedforonereasonoranother,andb. the subject matter of the case was within its jurisdiction, and no feature in the case…

preventsthecourtfromexercisingitsjurisdiction;andc. thecasecamebeforethecourtinitiatedbythedueprocessoflaw,anduponfulfillment

of any condition precedent to the exercise of jurisdiction.8. In the absence of a notice of appeal lodged in terms of Rule 59, the applicant’s motion on

notice was fatally incompetent and the Court could not entertain the same.

The motion is struck out with no orders on costs.

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What would amount to Possession in a Criminal Trial for Possession of Wildlife Trophies

Republic v David Njeru Mwathi & 2 others

Resident Magistrate Court at Marimanti December 15, 2015F Nyakundi, RM


Environmental Law – wildlife – wildlife crime – possession of game trophy - claim where the accused persons were charged with illegal possession of eleven ivory tusks without a permit – legal definition of possession - Wildlife Conservation and Management Act, section 84(1), 92, 95, 101(b) 105,

Brief FactsThe accused persons were charged with various offences. In count one, they were charged with the offence of being in possession of wildlife trophy contrary to section 95 as read with section 105 of the Wildlife Conservation and Management Act, 2013. The second count was of dealing in wildlife trophy contrary to section 84(1) as read with section 92 and section 105 of the Wildlife Conservation and Management Act, 2013. The first accused person was also charged on the third count of obstructing an officer in the execution of his powers contrary to section 101(b) of the Wildlife Conservation and Management Act, 2013.

Issuei. Whether the accused persons were found in possession of the wildlife trophies (the 11 pieces

of ivory) without a permit.

Held:1. Possession was defined in the Black’s law dictionary as having in one’s actual control; while

legal possession was that possession accompanied by intent to hold it as one’s own. It was also known as possession in law. It also meant the fact of having or holding property in one’s power or the exercise of dominance over property. Criminal possession meant the unlawful possession of certain prohibited articles, such as illegal drugs, fire arms and others.

2. The evidence produced in court pointed to the fact that the 11 pieces of ivory were found in the house that belonged to the late Rasta (a relative of the accused persons).

3. The prosecution failed to connect the accused persons to the fact that they knew about the ivory and to the fact that indeed they had criminal possession of the same and that was never proved to the required standards in law.

4. The prosecution failed to establish the issue of possession against the three accused persons. The evidence produced was incoherent, untenable, inconsistent, contradictory, self-defeating and never connected the three accused persons to the possession of the 11 tusks recovered. The accused persons therefore had the benefit of doubt.

5. The prosecution failed to categorically state the kind of dealings that the three accused persons were involved in whether selling or otherwise. The particulars were not exhaustive enough and did not disclose what dealings the three accused persons had in relation to the 11 purported elephant tusks and that omission per se was crucial.

6. There were no inventories produced in court to serve as proof of such recoveries. Production of inventories was a good practice especially where such serious exhibits were recovered from suspects. It would have been unsafe to hold any of the exhibits produced in court were


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recovered from the accused persons as they never signed any inventory of the same. The keys were never recovered from the possession of DW2.

7. The Court made a scene visit and noted that the house where the trophies were recovered from appeared unclean, deserted, unoccupied and locked out. It was also clear that the same belonged to the late brother of the accused persons.

8. The 1st accused person was charged under section 10(b) of the Wildlife Conservation and Management Act, which indeed did not create such an offence. That charge was never amended at all. Thus, the accused was charged under a wrong section of the law.

Accused persons acquitted under section 215 of the Criminal Procedure Code. The prosecution failed to prove all charges against the accused persons.The Kenya Wildlife Service never investigated the case to the required standards.

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Duplicity of charges amounts to an illegality and is remedied through revision

Mahat Sangweyhei Kedhiye v Republic

High Court at Voi November 30, 2015J Kamau, J

Criminal Revision No. 5 of 2015

Criminal Procedure – charges – duplicity of charges – claim where an accused person was charged with two counts using the same facts - whether there was duplicity of charges preferred against the Applicant – Criminal Procedure Code, section 134.

Brief FactsThe Respondent had been charged with entering a national park contrary to Sections 102(1) (a) and 102(3) of the Wildlife Conservation and Management Act 2013. The Applicant was found guilty and fined a sum of Kshs 250,000/= and in default to serve two (2) years’ imprisonment and Kshs 70,000/= and in default to serve five (5) months imprisonment in respect of Count II. Aggrieved by the conviction on both counts and sentence that was meted upon him by the trial court, the Applicant moved the court for a revision of the sentence by a letter. The Applicant sought a revision due to the duplicity of the charges that were preferred against him.

IssuesWhether there was duplicity of charges preferred against the Applicant having been charged with entering a national park contrary to Sections 102(1) (a) and 102(3) of the Wildlife Conservation and Management Act 2013.

Relevant Provisions of the LawCriminal Procedure Code

Section 364The High Court may call and examine any record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded, and as to the regularity of any proceedings of any such court

Held1. A court could exercise powers conferred on it by Section 361 and 361(3) of the Criminal

Procedure Code to disturb a finding, sentence or order where the issue had been presented as a revision instead of an appeal. The Applicant sought a revision due to the duplicity of the charges that were preferred against him. It was illegal for the Respondent to have charged the applicant with both counts as Count I could only be sustained if he was found in the park without the cows.

2. The court considered the provisions of Section 102 of the Wildlife Conservation and Management Act, 2013 vis-à-vis the evidence that was adduced in court. Each charge could stand on its own set of facts. However, a charge under Section 102(3) of the Wildlife Conservation and Management Act appeared to be less serious than the offences contemplated under the provisions of Section 102(1) (a) of the Wildlife Conservation and Management Act.

3. The punishment for an offence under Section 102(3) of the Wildlife Conservation and


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Management Act was much lower than that which could be meted out under Section 102(1) (a) of the said Act. Section 102(4) of the said Act gave a window allowing for grazing in the national park connoting that it was not all gloom for herders.

4. The primary reason the Applicant was in the National Park was to graze his cattle and not for any other reason. If there was any other reason, the Prosecution did not demonstrate the same before the trial court. The Wildlife Conservation and Management Act had a specific provision for an offence of entering the National Park with animals. If a person committed an offence that contained all elements, he ought to have been charged under that offence only.

5. The Applicant would suffer double jeopardy and great prejudice if the court was to allow convictions on both charges to stand undisturbed. He would suffer very serious consequences if he was to be convicted under the provisions of Section 102(1) (a) of the Act. Section 102(3) of the Act was clear that entry without authorisation was contemplated under Section 102(1) (a) of the Wildlife Conservation and Management Act. If the Applicant had entered the park on a different mission other than to graze cattle, then he had to be charged with having committed an offence contrary to the provisions of Section 102(1) (a) of the Act.

6. There was duplicity of charges when he was charged under the two (2) counts. It was clear from the evidence that was adduced by the Prosecution that the Trial Magistrate did not ignore the Applicant’s defence that he had entered the park to look for cows and that he did not know that he was in the park as he had contended. The Trial Magistrate observed that the same was full of denial and that the Applicant intended to use the same to absolve himself from the offences that were facing him. The argument of lack of mens rea on the part of the Applicant could not be introduced at that stage of revision. It had to have been raised in the first instance in the trial court. The court therefore found the argument to have been irrelevant in the circumstances of the case and rejected the same.

7. The conviction and sentence of the Applicant in respect of Count I was illegal as the Applicant could competently be charged under Section 102(3) of the said Act. In respect of Count II, the sentence that was imposed on the Applicant was not high or excessive as the same was within the law. The court therefore could not interfere with the decision of the Learned Trial Magistrate as the same was correct, legal and proper.

Application partially allowed, count I quashed and set aside, count II conviction and sentence affirmed.

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Defining a Dealer under the Wildlife Conservation and Management Act

Republic v John Kenteya Kaluo & another

Chief Magistrate’s Court at Narok November 12, 2015T.A Sitati SRM

Criminal Case No. 1625 of 2015

Evidence Law – standard of proof for criminal cases – consequences of failing to meet the required standard of proof in criminal cases – whether or not the charges had been proved beyond any reasonable doubt as required by law – Whether the accused persons were dealers within the definition of dealing under the Wildlife Conservation and Management Act-Criminal Procedure Code (cap 75), section 215; Wildlife Conservation and Management Act, 2013, section 2 Criminal Practice and Procedure – acquittal – acquittal for want of evidence and proper investigation –consequences of improper investigations – whether the investigating officers acted diligently in conducting their investigations – Where the two accused persons were found in possession of the leopard skin or dealing in the leopard skin – Criminal Procedure Code (cap 75), section 215

Brief facts The Accused persons were charged with an offence of possession of Government trophy contrary to section 95 as read with section 105 (1) (a) of the Wildlife Conservation and Management Act, 2013. The Accused were found with a leopard skin value of Kshs 100, 000 without a permit. The Accused persons were unrepresented in the proceedings.

The first Accused person denied the charges vide unsworn statement and admitted that it was true he was found in “Kiosk” but he had gone there as a client since it was a “Miraa” shop.

The second Accused equally denied the charges but admitted that indeed inside the “Kiosk” taking tea when the police stormed in and arrested them after searching the “kiosk” and taking the leopard skin.

Issuesi. Whether or not the charges had been proved beyond any reasonable doubt as required by

lawii. Whether the investigating officers acted diligently in conducting their investigationsiii. Whether the accused persons were dealers within the meaning of the definition of dealing

under the Wildlife Conservation and Management Act

Held1. The leopard skin is a wildlife trophy under the wildlife Conservation and Management Act

under section 95 of the said Act. The offence was possession or keeping of the same without a permit.

2. In the instant proceedings, the charge statement spoke of “Government trophy” instead of “Wildlife trophy” as provided for in the Act. There was a defect that was curable by amendment but no amendment was done. But the defect did not prejudice the Accused persons in any way as it was not misleading.

3. The leopard skin was found hidden in the kiosk. The two Accused persons were inside the


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shop at the material time of arrest. The leopard skin was recovered by the officers – not surrendered by the two accused persons to the officers. The Kiosk was a public place as it was frequented by sellers and chewers of “Miraa”.

4. Possession of or being in possession included not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody or any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person.

5. If there were two or more persons and any one or more of them with the knowledge and consent of the rest had anything in their custody or her custody or possession, it should be deemed and taken to be in the custody and possession of each and all of them.

6. It was incumbent upon the investigation officer to find out what was the precise connection of the two accused persons to the kiosk. All that he needed to do as a police investigator was to either; a. visit the kiosk and check the business licence issued by the county Government to see

who was the operator of the kiosk ORb. Summon the landlord or landlady of the kiosk, if the owner of the kiosk was a tenant.

7. The investigating officer in the instant case had admitted that he did not visit the kiosk to establish its link to the two accused persons. That left the room for doubt in the Court’s mind because a kiosk is a public place frequented by miraa chewers and mere presence inside did not make them possessors of its contents. The prosecution could not establish its case beyond any reasonable doubt as required by section 108 of the Evidence Act.

8. Dealing as defined in section 2 of the Wildlife Conservation and Management Act meant, any person who, in the ordinary course of any business or trade carried on by him, whether on his own behalf or on behalf of any other person: Sells, purchases, barters or otherwise in any manner deals with any trophy; or cuts, carves, polishes preserves, cleans, mounts or otherwise prepares any trophy”, or Transports or conveys any trophy.

9. In the instant case none of the accused persons offered for sale the leopard skin. They also were not found conveying or transporting the leopard skin to make them to be dealers or to commit the element of dealing. It appeared that the investigating officers were in a mighty rush and haste that led them to prejudice their mission. Had they acted in a careful and discreet manner they would have easily let the accused offenders to make the offer to sell. That would have established “dealing”

10. The evidence did not prove beyond any reasonable doubt the second charge and both should be acquitted under section 215 of the Criminal Procedure Code.

Both accused persons acquitted pursuant to section 215 of the Criminal Procedure Code.

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Revision orders granted in respect to a charge under a wrong section of the law

Simon David Harris & Another v Republic

High Court at Nakuru October 29, 2015R P V Wendoh, J

Revision No 99 of 2013

Criminal Procedure – application for revision orders – claim seeking revision of orders granted by the Chief Magistrates Court in respect to the sentence and conviction of the applicant – claim where the applicants alleged that the sentence was too high.

Brief Facts:The applicants were convicted serve 3 years imprisonment each on a charge of possession of government trophy contrary to section 4(1)(b) as read with sections 521(1) of the Wildlife Conservation and Management Act; each to serve one year imprisonment on the charge of failing to make a report of obtaining possession of government trophy contrary to section 39(3)(a) of the Wildlife Conservation and Management Act; and each to serve one year imprisonment for dealing in government trophy contrary to section 39(3)(b) of the Wildlife Conservation and Management Act. They were aggrieved with those orders and thus filed for revision of the said orders.

Issue:i. Whether the applicant was entitled to the revision orders sought.

Held:1. On the first charge, the accused persons were charged under section 362 as read with

section 41(1)(b) of the Wildlife Conservation and Management Act. That section did not exist. Perhaps they should have been charged under section 42(1) (b) of the Wildlife Conservation and Management Act. Since section 41(1)(b) did not disclose any offence as charged, the accused persons were thereby acquitted of the charge.

2. The second charge was under section 39(3)(a) of the Act. A person found guilty under that sub section was liable to a fine not exceeding Ksh. 10,000/- or to imprisonment for a term not exceeding 12 months or to both.

3. In count 3, they were charged under section 39(3)(b). One found guilty under that Act was liable to a fine of Ksh. 10,000/- or imprisonment for a term not exceeding 12 months or to both.

4. The court declined to interfere with the trial court’s exercise of discretion on the sentence in respect of Count 2 and 3. Those sentences were lawful. The accused persons were to serve one year in imprisonment on each count, the sentences were to run concurrently and the accused person was to be repatriated to his home country upon completion of the term of sentence.

Application partly allowed.

United Nations Office on Drugs and Crime (UNODC)

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Peter Mwangi Kariuki v Republic

Appellate Court affirms conviction of an honorary warden for wildlife crimes


High Court at Nyeri October 21, 2015JM Mativo J

Criminal Appeal No. 57 of 2012

Environmental Law - wildlife crime - offence of dealing with government trophies - claim where a warden was charged for dealing in wildlife trophies - elements of dealing in wildlife/government trophies - Wildlife Conservation and Management Act, sections 42(1)(b), 43(4)(a), 56(2)Criminal Law - conspiracy – conspiracy to implicate someone of wildlife crimes- proof of conspiracy - who is an accomplice, and whether any of the witnesses was an accomplice to convict the appellant in the instant caseEvidence Law - standard of proof in criminal cases- proof of conspiracy-proof of dealing in government trophies-where dealing includes being in possession of game trophies, and failing to make reports of being in possession- whether the prosecution adduced sufficient evidence to support the conviction that met the required standard and test required by law-whether the prosecution in the instant case established its case beyond reasonable doubt.

Brief FactsThe Appellant was a honorary warden at the Kenya Wildlife Service. He was charged and convicted in the trial court with the offences of: being in possession of a game trophy contrary to section 42(1) (b) of the Wildlife Conservation and Management Act, failing to make a report of being in possession of a government trophy contrary to section 56(2) of the said Act. The Accused denied each count of the charges.

There were testimonies from the arresting officers and those from Kenya Wildlife Service investigation officers implicating the appellant as a dealer of trophies. Some officers conducted an undercover investigation to pretend as interested customers and proceeded to the appellant’s house where they introduced themselves as buyers and asked to see the ivory. The appellant pulled a sack from under a seat in the sitting room and removed 4 pieces of ivory, they bargained and he asked for Ksh 3,000 per kilogram which translated to Ksh 15,000 since they weighed 5Kg. They accepted the price and while still negotiating as per the plan, the appellant was arrested.

In his defence the Appellant informed the court that his work as a warden included picking all things belonging to animals inside the forest and to make roads inside the park and that he used to pick snares and teeth and would take them to the Senior Warden at Mweiga. He stated that at the material time he was at Mt. Kenya for 3 weeks for surveillance work, and he went back home on 10.6.10 at around 10am, he saw the Kenya Wildlife Service personnel (KWS) enter his home, and asked to pick ivory and go with them. He alleged that he denied having any but one officer removed it from where he was hiding. He denied that he was selling the ivory or discussing selling the same with them. His testimony was that he had a licence for surveillance and a KWS pass. He denied ever selling wildlife products. He insisted that the ivory was brought to his farm by a boy and he knew nothing about it.

After the analysis of evidence adduced, the trial Magistrate found that all the three counts were proven and found appellant guilty as charged and convicted him and sentenced him to pay a

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fine of Kshs 10,000 in default 7 month’s jail for the first count, fine of Kshs 20, 000 in default 12 months jail for the second count and fine of Kshs 10,000 in default 6 months jail for the third count.

The Appellant appealed against the conviction on the grounds inter alia that, the trial court ignored the fact that the Appellant was an honorary game ranger and that he was convicted based on accomplice evidence.

Issues i. Whether the prosecution adduced sufficient evidence to support the conviction that met the

required standard and test required by lawii. Whether the prosecution in the instant case established its case beyond reasonable doubt.iii. Who is a dealer within the definition of the Act and whether the appellant was a dealer within

the said definition.iv. Whether Elephant tasks are trophies within the meaning of section 39 of the Wildlife

(Conservation and Management) Actv. Who is an accomplice, and whether any of the witnesses was an accomplice to convict

the Appellant in the instant case

Held1. It was the function of a first appellate court to scrutinize the evidence to see if there was

some evidence to support the lower court’s findings and conclusions. Only then could it decide whether the trial courts findings should be supported. In doing so, the court should make allowance for the fact that the trial court had had the advantage of hearing and seeing the witnesses.

2. Section 4 of the Wildlife Conservation and Management Act, provided that the Director could with the approval of the Minister appoint fit and proper persons to be honorary warders for the purpose of assisting in the carrying into effect the provisions of the Act. In the instant case it was not disputed that the appellant was an honorary warder duly appointed under the said section.

3. The effect of failure to call police officers involved in a criminal trial, including the investigating officer, was not fatal to the prosecution unless the circumstances of each particular case so demonstrate. In the instant case, the evidence of the investigating officer and the arresting officer would not have been prejudicial to the prosecution case as it was established beyond doubt that the appellant was involved in the crime with which he was charged. There was no basis to make an adverse inference on the alleged omission.

4. The legal burden of proof ought not to leave the prosecution’s backyard. It was the duty of the prosecution to prove the prisoner’s guilt. The legal burden is the burden of proof which remained constant throughout a trial; such was the burden of establishing the facts and contentions which would support a party’s case. If at the conclusion of the trial the prosecution failed to establish such to the appropriate standards, the prosecution would fail. The legal burden of proof in criminal cases rests on the shoulders of the prosecution and ought to be established beyond reasonable doubt.

5. Possession includes two elements; namely being in physical control of the item and knowledge of having the item. To be guilty of possession, an accused person should be shown to have knowledge of two things, namely that: a. that the accused knew the item was in his custody and b. he knew that the item in question was prohibited.

6. A person has possession of something if he knows of its presence and has physical control of it, or has the power and intention to control it. The evidence adduced in the instant case was that the appellant pulled a sack from under the seat and removed the tusks and quoted


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the price of Kshs 3,000 per kg. The witnesses in the instant case were acting on information that; he was selling the items and upon introducing themselves he availed the items and discussion on the price ensued. In that sense, possession was proved to the required standard because the appellant pulled the sack containing the tusks from under the seat in a manner that suggested he had custody and control of the same.

7. Section 39 of the Wildlife Conservation and Management Act provided a list of Government trophies and stipulated in sub-section 2 that any person who by any means obtained possession of a government trophy should forthwith make a report thereof to an authorized officer and should hand the trophy to such officer. A trophy is defined in the Act as: any protected animal, game animal, or game bird alive or dead, and any bone, claw, egg, feather, hair, hoof, skin, tooth, tusk, or other durable portion whatsoever of that animal or bird or fish or other aquatic life whether processed, added to or changed by the work of man or not, which is recognized as such a durable portion. Elephant tusks are within the definition in section 39 of the said Act. There was nothing on record to rebut that evidence.

8. A Dealer is defined under Wildlife Conservation and Management Act as any person who, in the ordinary course of business or trade neither carried on by him, whether on his own behalf or on behalf of any other person, sold, purchased, bartered nor otherwise in any manner dealt with any trophy. The evidence adduced in the instant case was that he removed the tusks and asked for Kshs 3,000 per kg. The act of selling was proved and to that extent the ingredient of dealing was established to the required standard. The appellant did not have any licence to possess or to deal with the tusks nor did he report to an authorized officer as the law required.

9. An accomplice is a person who knowingly, voluntarily, and with intent unites with the principal in the commission of crime. One who is in some way concerned or associated in the commission of crime; partaker of guilt; one who aids or assists, or is an accessory.

10. One is liable as an accomplice to the crime of another if he or she gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime. An accomplice may or may not be present when the crime is actually committed. The circumstances under which the key prosecution witnesses went to the Appellant’s premises acting on a tip off and how they successfully accomplished their mission were well detailed in the evidence and suitable corroboration clearly emerges as one reads all their evidence. There was nothing in the slightest manner to suggest that any one of the witnesses or all of them were accomplices.

11. The Accused during a criminal prosecution had at stake interests of immense importance, both because of the possibility that he could lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction. Moreover use of the reasonable doubt standard was indispensable to command the respect and confidence of the community. It was critical that the moral force of criminal law ought not to be diluted by a standard of proof that leaves people in doubt whether innocent men were being condemned. In the instant case the prosecution discharged the burden of proof to the required standards and as such was sufficient to convict the appellant.

12. No prejudice was occasioned to the appellant and in any event minor irregularity was curable under the provisions of article 159(2)(d) of the Constitution of Kenya 2010. In any event, even if the court were to disregard the evidence of some witnesses, the remaining evidence was still overwhelming against the appellant.

Appeal dismissed. Conviction upheld.

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Bail application granted to an accused person convicted of being in possession of game trophy contrary to section 95 of the Wildlife Conservation and Management Act

Bernard Muigai Mutambu v Republic

High Court at Nairobi October 14, 2015L Kimaru, J

Miscellaneous Criminal Application No 307 of 2015

Jurisdiction – jurisdiction of courts – jurisdiction of the Court Martial – jurisdiction of the Court Martial to hear and determine civilian offences – claim where an accused was charged with committing a civilian offence contrary to section 133(1)(b) of the Kenya Defence Forces Act – claim where the accused was found in possession of and dealing with wildlife trophy contrary to section 95 and 84 of the Wildlife Conservation and Management Act – whether the Court Martial had the jurisdiction to hear and determine offences of a civilian nature - Kenya Defence Forces Act, section 133(1)(b); Wildlife Conservation and Management Act, sections 84, 95Criminal Procedure – Bail and Bond – factors to consider before the grant of bail - claim seeking admission to bail – claim where accused persons on their own plea of guilt were convicted and thus applied for bail pending the hearing and determination of their appeal - whether the accused persons merited being admitted to bail pending the hearing of their appeal.

Brief Facts:The applicant was convicted on two counts of committing a civilian offence contrary to section 133(1) (b) of the Kenya Defence Forces Act by the Court Martial siting at Moi Airbase. The particulars of his offence was that he had been found in possession of, and dealing in wildlife trophy contrary to sections 95 and 84(1) of the Wildlife Conservation and Management Act, specifically two elephant tasks weighing 10 kilograms. He thus filed the instant application seeking bail pending the appeal of his conviction and seven years imprisonment.

Issue:i. Whether the Court Martial had the jurisdiction to hear and determine offences of a civilian nature.ii. Whether the applicant merited being admitted to bail pending the hearing of their appeal.

Held:1. The issue of jurisdiction of the Court Martial to try him on a civilian offence raised a triable

constitutional question which needed to be addressed by the Court on appeal.2. The applicant’s appeal had a chance of success. Thus, the applicant would have been

prejudiced by his continued incarceration in the possibility that his appeal succeeded.

Application allowed. Applicant released on bail pending appeal. Applicant was to deposit bail of Kshs. 100,000/- or to post a bond of Ksh. 500,000/- with a surety of a similar amount

Bernard Muigai Mutambu v Republic

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K P Marsabit v Kosi Mio Galgalo


Accused convicted for being in possession of game trophy

K P Marsabit v Kosi Mio Galgalo

Principal Magistrate Court at MarsabitB M Ombewa, SRM October 2, 2015


Environmental Law – wildlife – wildlife crime – possession of game trophy – claim where the accused was charged with the offence of being in possession of a game trophy without prior permit – Wildlife Management and Conservation Act, section 95

Brief factsThe accused person was charged with the offence of being in possession of game trophy without prior permit contrary to section 95 of the Wildlife Management and Conservation Act.

Issues:i. Whether the prosecution proved that the accused person was in possession of the elephant

tusk without a permit.

Held:1. The evidence on record was clear that the accused was in possession of an elephant tusk

weighing about 0.1kg.2. The accused did not produce any permit allowing him to be in possession of the tusk.

Prosecution proved that indeed the accused was in possession of a game trophy/ elephant tusk weighing about 1kg.

Accused convicted pursuant to section 215 of the Criminal Procedure Code.

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Accused acquited for being in possession of game trophy

State v Augustus Mwangia Kisiu & another

Chief Magistrate Court at Nanyuki September 1, 2015E Bett, Ag. SRM


Environmental Law – wildlife – wildlife crime – possession of game trophy – claim where the accused was charged with the offence of being in possession of game trophy without prior permit – Wildlife Management and Conservation Act, section 39(3)(b); 43(4)(a)

Brief factsThe accused persons were charged with two criminal offences. On count 1, the two faced a charge of being unlawfully in possession of government trophy contrary to section 39(3)(b) of the Wildlife Conservation and Management Act. On count 2 they were charged with the offence of dealing in government trophies without a dealers’ license contrary to section 43(4)(a) of the Wildlife Conservation and Management Act.

Issues:i. Whether the accused persons were found in possession of the government trophies and if

so whether they had relevant certificates of ownership.ii. Whether the accused persons were found dealing in government trophies without a dealer’s

license.

Held:1. There were two categories of possession; direct and constructive possession. Direct possession

was defined as actual and physical possession of goods whereas constructive possession arose where a person was not direct or physical possession of goods but nonetheless retained control over it.

2. In view of the loopholes and inconsistencies in the evidence produced in court, it was not sufficiently proven that the accused persons had in their possession five pieces of ivory at Spring View School.

3. There was no proof of the alleged intended sale transaction. In particular, the officers failed to give the partner details of the transaction given as the purchase price. That was perhaps occasioned by the prosecution’s failure to call the person posing as a buyer.

Accused persons acquitted under section 215 of the Criminal Procedure Code. Prosecution failed to prove the charges beyond reasonable doubt.

3rd accused person found guilty and convicted under section 215 of the Criminal Procedure Code. Ordered to pay Ksh. 20,000,000/- or in default to serve five years jail term.

1st and 2nd accused persons given the benefit of doubt and acquitted under section 215 of the Criminal Procedure Code.

State v Augustus Mwangia Kisiu & another

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Republic v Feisal Mohamed and others


Magistrate Courts lack jurisdiction to review decisions of the High Court


High Court at Mombasa August 26, 2015M Muya, J


Criminal Procedure – Revision – revision of criminal trials – claim where a trial magistrate court purported to review the orders of a High Court that had the effect of denying an accused person bail on a charge of possession of government trophies and dealing in government trophies without a license.

Brief Facts:The instant application sought to revise the orders of a Magistrate’s court that purported to revise the orders of the High Court. The background to the matter was that some six accused persons had been charged with two counts. The first one related to possession of wildlife trophies contrary to section 95 as read with section 82 of the Wildlife Conservation and Management Act. In the second count, they were charged with the offence of dealing in wildlife trophies contrary to section 84(1) as read with section 92 of the Wildlife Conservation and Management Act. The sixth accused person applied for bond which was rejected by the trial court. He subsequently made another application for bond which was granted at Ksh. 10,000,000/- and a surety of a similar amount. The office of Director of Public Prosecutions was aggrieved with those orders and applied for a revision of the same from the High Court. The High Court then granted the revision orders on the ground that the Prosecution had proved on a balance of probabilities that the accused was a flight risk and thus denied him bond.

Issue:i. Whether a trial Magistrate court can review the orders of a High Court.ii. Whether a constitutional issue once determined by the High Court could be re-litigated

before a magistrate court and a contrary opinion rendered.

Held:1. Article 162 of the Constitution provided for the system of courts in Kenya and placed them in

hierarchical order from the Supreme Court to the subordinate courts (which were established under article 169 of the Constitution). It therefore followed that a magistrate could not lawfully review orders of a High Court judge.

2. The subordinate courts lacked the jurisdiction to re-litigate a constitutional issue that had already been determined by the High Court.

3. Article 10 of the Constitution of Kenya provided for the national values and principles of governance and bound all state organs, state officers, public officers and all persons whenever any of them applied or interpreted the Constitution or enacted, applied or interpreted any law.

4. The orders of the High Court delivered on 30th March, 2015 were clear and succinct and had the effect of denying the sixth accused bail unless those orders were varied by a higher court. Those orders ousted the jurisdiction of the subordinate courts from considering the issue of bond in respect of the sixth accused. The Court did not shut the sixth accused from approaching the High Court or the Court of Appeal on the issue of the bond.

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5. It was improper for the sixth accused to go back to the lower court and purport to make an application for bond for whatever reason. It was improper for the trial court to clothe itself with jurisdiction which had been ousted from him and purport to review orders of a judge of the High Court.

Application for revision allowed. The sixth accused person was to stay in remand.


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Republic v Tiapukel Kuyoni & another


Failure of the investigating officer to keep a mandatory inventory of the items recovered from the accused person was not fatal to the prosecution’s case.


Senior Resident Magistrates Court at Narok August 26, 2015TA Sitati, SRM


Words and Phrases - definition of “possession”- “be in possession of or have in possession includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person; if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;”-section 4; Penal Code Chapter 63

Brief FactsThe two Accused persons were jointly charged with three offences namely, the felony of keeping a wildlife trophy, being in possession of Wildlife trophy and dealing in Wildlife trophy contrary to section 95 as read with section 92 of the Wildlife Conservation and Management Act 2013. This concerned 6 pieces of elephant tusks weighing 18kgs with a street value of KShs. 1,800,000, without a permit.

Issuesi. Whether the non-preparation of an inventory of the items seized by the arresting officer had

any effect on the case.ii. Whether the 1st Accused person could be held to have been the possessor simultaneously

with being held to be the keeper and whether these two legal concepts and positions are mutually exclusive or are capable of simultaneous occurrence

Relevant provisions of the LawWildlife Conservation and Management Act No. 47 of 2013Section 92Any person who commits an offence in respect of an endangered or threatened species or in respect of any trophy of that endangered or threatened species shall be liable upon conviction to a fine of not less than twenty million shillings or imprisonment for life or to both such fine and imprisonment.

Section 95Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.

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The Penal Code Chapter 63Section 4In this Code, unless the context otherwise requires—

“possession”—(a) “be in possession of” or “have in possession” includes not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;(b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them;

Criminal Procedure Code Chapter 75Section 215The court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him.

Held1. The duty of the court was to weigh the evidence and determine if the same proved the charges

beyond any reasonable doubt as required by law.2. The 1st Accused had actually kept the tusks hidden in the dugout pit and personally retrieved

the tusks. For the element of keeping to arise, actual physical custody of or actual management of an item must exist. He had the actual custody of the 6 tusks that he had buried in his farm. He actually dug them up using a jembe that he had fetched from his own house. This evidence was direct and overwhelming against the 1st Accused.

3. Although the arresting officer was required to prepare an inventory of the items recovered and failure to do so was a negligent omission on his part, it was not a mandatory requirement and failure to comply was not fatal to the prosecution’s case.

4. The Penal Code and Black’s Law Dictionary defined possession as more or less ownership. It need not be actual for it to arise. This could be contradistincted from keeping, which ought to be actual. The 1st Accused exercised ownership rights as the claimant of the tusks that he had kept. That made him to be a possessor in addition to the fact of keeping. He exercised ownership rights yet he had no permit for the same. In the 1st Accused’s case, the element of keeping and possessing occurred concurrently.

5. The evidence on count 3 was direct and overwhelming. The 1st Accused negotiated with PW1 and PW4 for sale of the tusks at an unknown price and in fact took steps to complete the transaction by offering the tusks to buyers who turned out to be police officers.

6. There was no material to suggest that the farm belonged to the 2nd Accused jointly for the element of keeping to similarly apply to the 2nd Accused.

7. Since it was only the 1st Accused who had kept the trophies, it would have been impossible to arrive at the same conclusion for the 2nd Accused without further evidence which did not arise in the case.

8. The 2nd Accused Person was in constructive possession of the tusks within the meaning of definition (a) and (b) of section 4 of the Penal Code.

9. There was a fifth prosecution witness lined up but who was not called. The failure to call that particular witness had no adverse bearing on the case presented against the accused persons. That witness statement was tendered by the 2nd Accused and a cursory perusal of that statement indicated that his testimony was a replica of Ranger Odhiambo’s oral account to court. His coming therefore would have been superfluous and a regurgitation of what


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others had stated.10. The evidence tendered against the 2nd Accused was direct and overwhelming and applied

in the same way and to the same extent as that of the 1st Accused. The 2nd Accused directly participated in the negotiations for the price, directly participated in the digging out and the carrying of the tusks to the designated place. He had a direct pecuniary interest in the entire criminal enterprise.

a. The 1st Accused person found guilty as charged of count 1, count 2 and count 3 and convicted under Section 215 of the Criminal Procedure Code.

b. The 2nd accused person found not guilty of count 1 and acquitted of the same. 2nd Accused person found guilty as charged of count 2 and 3 and convicted under Section 215 of the Criminal Procedure Code.

c. The 6 tusks, nylon sack and jembe were to be forfeited to the state - K.W.S. for disposal.d. Since the trophies were for an endangered species the court passed a sentence of a fine of

Kshs. 20 million in default life imprisonment against 1st Accused Person.e. On Count 2, each accused was fined Kshs. 20 million in default serve imprisonment concurrent

to count 1.f. On Count 3, each accused person was fined Kshs. 20 million in default serve life imprisonment

concurrent to counts 1 and 2.

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Accused persons convicted for dealing in government trophies without a dealers’ license

Republic v George Waithaka and another

Chief Magistrate Court at Kibera August 11, 2015J Wanjala, CM


Environmental Law – wildlife crime – government trophies/ elephant tusks – offence of dealing in government trophies/ elephant tusks without a dealer’s license - offence of failing to report possession of government trophies/ elephant tusks – claim where the accused persons were charged and convicted of the offences of dealing in government trophies and the offence of failing to make a report of their possession of government trophies – Wildlife Conservation and Management Act, sections 39(3)(c), 43(4)(a), 56(2), .

Brief Facts:The 2 accused persons were charged with two offences. Count 1 was dealing in government trophy without a dealer’s license contrary to section 43(4)(a) as read with section 56(2) of the Wildlife Conservation and Management Act. Count 2 was failing to make a report contrary to section 39(3)(c) of the Wildlife Conservation and Management Act

Issue:i. Whether the prosecution proved that the accused persons were in possession of government

trophies/ elephant tusks.ii. Whether the accused persons had a certificate to allow them to possess the government

trophies/ elephant tusks.iii. Whether the accused persons had made a report concerning their possession of government

trophies/ elephant tusks as required under section 39(3)(c) of the Wildlife Conservation and Management Act.

Held:1. Evidence produced in court proved that the accused persons were in possession of the elephant

tusks. They had carried them in motor vehicle registration number KAG 891E Nissan saloon. They both carried the elephant tusks from the vehicle to the motor vehicle that PW1, PW2 and PW3 were using.

2. The accused persons never had any certificates to allow them to possess the elephant tusks. None of them mentioned that they had a certificate.

3. The evidence of PW1, PW2 and PW3 showed that the accused persons were dealing in government trophies. The evidence showed that they wanted to sell them. In fact PW3 negotiated the price with the first accused.

4. The charges were properly drafted in accordance with what was the previous Wildlife (Conservation and Management) Act under which they were charged. Thus, the evidence on record supported the charges in this case.

Accused persons convicted as charged in accordance with section 215 of the Criminal Procedure Code

Republic v George Waithaka and another

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Republic v John Mugambi Murungi & 2 others


Accused fined Ksh 20,000,000 for being in possession of game trophy

Republic v John Mugambi Murungi & 2 others

Chief Magistrate Court at Nanyuki August 5, 2015J W Gichimu, PM


Environmental Law – wildlife – wildlife crime – possession of game trophy – claim where the accused was charged with the offence of being in possession of game trophy without prior permit – Wildlife Management and Conservation Act, section 92, 95.

Brief factsThe Accused persons were charged with the offence of being in possession of government trophy (four pieces of elephant tusks weighing about 20kg worth two million without a permit) contrary to section 95 as read with section 92 of the Wildlife Conservation and Management Act. The three Accused persons were arrested together while travelling on a motor vehicle cycle number KMDD 070M. The 1st Accused person was carrying both the 2nd and 3rd accused persons on his motor cycle.

Issuesi. Whether the prosecution proved that the Accused persons were in possession of the elephant

tusk without a permit.

Held:1. The evidence produced in court showed that the 3rd Accused person was carrying the sack

which contained the elephant tusks aboard the subject motor cycle. He was in company of the other accused persons.

2. The accused persons were arrested as a result of the recovered tusks but not on the information given by the informers. The issue of possession of the elephant tusks which was a key ingredient of the offence in the case was pointed out by PW1 and PW2 and not by the informer.

3. There was no other evidence to prove that the 1st and 2nd accused persons knew that the 3rd Accused person was carrying tusks and that they were his accomplice. Both the 1st and 2nd Accused persons were thus given the benefit of doubt and acquitted.

Prosecution proved that indeed the 3rd Accused was in possession of a game trophy/ elephant tusks.3rd accused person found guilty and convicted under section 215 of the Criminal Procedure Code, ordered to pay Ksh 20,000,000 or in default to serve five years jail term.1st and 2nd accused persons given the benefit of doubt and acquitted under section 215 of the Criminal Procedure Code.

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Proof of ownership of the property of forfeiture is not a requirement or an impediment for forfeiture

Republic v Wesley Kiprotich Korir & another

Chief Magistrates Court at Narok July 7, 2015W. Juma CM


Criminal Practice and Procedure - forfeiture-forfeiture of property to the State-proof of ownership of a property to be forfeited -order of forfeiture of motor vehicle - Whether the motor vehicle that did not belong to the accused should be forfeited where the owner did not permit the accused to use the vehicle for illegal means- Forests Act (cap 385) Criminal Practice and Procedure - sufficiency of punishment - whether the trial court would determine the sufficiency of its own sentence and or punishment of an accused person-whether the punishment for the offence under section 55 (2) of the Forests Act meted out to the accused was sufficient.

Brief facts The accused was found transporting 160 cedar posts in a car belonging to a third party owner, without a permit from the forest service contrary to Section 55 (2) (b) of the Forests Act. The accused person pleaded guilty to the charges and was fined Kshs. 50,000 with an option of 6 months imprisonment in case of default. The accused person had not been permitted to transport the forest produce since the vehicle was used solely for private purposes, not business.

The owner (interested party/3rd party) had paid the fine of Kshs 50,000 as fine for the actions of the accused. And there was no proof of ownership of the vehicle to the 3rd party. There was no logbook to proof such ownership. The said owner (3rd party) nevertheless made application to have the vehicle released to him on account that he had bought the vehicle from the accused.

Issues i. Whether the punishment for the offence under section 55 (2) of the Forests Act directed to

the accused was sufficient ii. Whether the motor vehicle that did not belong to the accused should have been forfeited

where the owner did not permit the accused to use the vehicle for illegal means. iii. Whether the trial court would determine the sufficiency of its own sentence and or punishment

of an accused person

Held 1. Whereas the sale agreement that the vehicle ought not to have been used for illegal purposes,

such as carrying forest produce per se it did not prove who the vehicle owner of the vehicle was. It could be somebody else because the log book was not annexed.

2. Forfeiture of the vehicle was part of the sentence and it was only a higher court which could decide whether the sentence was proper or not. The trial Court would not decide over its sentence to order a finding that the fine was sufficient punishment.

Application to have the vehicle not forfeited dismissed

Republic v Wesley Kiprotich Korir & another

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Republic v Joseph Kibet Langat & 2 others


Kenya Wildlife Service officers should not avoid acting on information relevant to their operations


Chief Magistrates Court at Narok June 30, 2015W. Juma C.M


Evidence Law - exhibits - identification of exhibits - identification of exhibits by an investigating officer - whether the act of an investigating officer of confusing the exhibits was fatal to a case.Jurisdiction - territorial jurisdiction - jurisdiction of the Kenya Wildlife Service officers - when the Kenya Wildlife Service officers are said to have acted beyond their territorial jurisdiction.

Brief FactsThe accused persons were charged with two counts under the Wildlife Conservation and Management Act namely being in possession of wildlife trophy and of dealing in wildlife trophy. It was alleged that on May 27, 2014, at Itembe within Bomet County, jointly, the accused were found in possession of and were dealing with wildlife trophy namely 8 kilograms of elephant tusks which had a street value of Kshs. 800,00/= and two pieces of hippopotamus tusks which weighed approximately 6 kilograms and had a street value of Kshs. 60,000/= without a permit.

Issuesi. Whether the act of an investigating officer of confusing the exhibits was fatal to the case.ii. Whether the Kenya Wildlife Service officers acted beyond their territorial jurisdiction.

Relevant Provisions of the LawWildlife Conservation and Management ActSection 92 - Offences relating to endangered and threatened species

‘Any person who commits an offence in respect of an endangered or threatened species or in respect of any trophy of that endangered or threatened species shall be liable upon conviction to a fine of not less than twenty million shillings or imprisonment for life or to both such fine and imprisonment.’

Section 95 - Offences relating to trophies and trophy dealing‘Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.’

Criminal Procedure CodeSection 215 – Decision

‘The court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him.’

Held1. In the absence of the informer’s evidence it could not be proved that the accused persons

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were dealing in the wild life trophies. The begging question would have been the valuable evidence of whoever had pretended to be dealing with them. There was no evidence that the trio were transacting among themselves.

2. The first and second accused persons claimed to have been arrested separately and at different times but did not challenge PW1 and PW2 who claimed to have arrested them at the same place. The line of defence of the first and second accused was an afterthought. They would have confronted PW1 and PW2 that they were never together in the first place.

3. Had the third accused been an honest man he would have reported to his local authorities that there was a stranger who claimed to possess wildlife trophy and who wanted to associate him with the crime. It was belated for the accused to come up with the story of the tusks in his defence when he had not questioned the prosecution witnesses.

4. The investigating officer appeared to have confused exhibits but he had not handled them in the first instance but they were the same exhibits marked in the case. An expert at identification of tusks or horns would have been of use to them. The confusion was not very material to the case.

5. PW1 hinted that at the arrest of the third accused members of public raised a commotion and had such commotion been against the police one doubted that they would have been helpful. The date of arrest of the third accused was not the date of the commission of the offence.

6. The borders within which Kenya Wild life Service ought to have operated had not been given. The officers would not have avoided acting on information relevant to their operations.

7. The prosecution had proved the case beyond any shadow of a doubt that the accused persons were found together and in each other’s company. The accused persons conduct showed that they were together with a common purpose and that explained why some of them ran away when the officers arrived.

8. The first and second accused were said to have named the third accused as pastor and the owner of the cargo but that was neither here nor there as in accomplice situations such defences were expected.

9. The three accused persons were beyond any shadow of doubt jointly found in possession of wildlife trophy, namely, three elephant tusks and two hippo tusks on May 27, 2014 contrary to section 95 of the Wildlife Conservation and Management Act and found guilty of the offence in count 1 and convicted accordingly under section 215 of the Criminal Procedure Code. Count 2 was not proved and they were acquitted under section 215 of the Criminal Procedure Code.

Each accused fined Kshs. 1,000.000/= I/D serve five years imprisonment and in addition serve two years imprisonment.


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Jean Wanjala Songoi & another v Republic


Kenya Wildlife Services Officials and the Police have a duty to conduct proper investigations before charging persons in Court.


High Court at Kitale June 4, 2015J. R. Karanja J

Criminal Appeal No 100 of 2014

Evidence – possession – constructive possession - whether constructive possession was necessary for a conviction on charges related to possession and dealing in game trophies.

Brief factsOn the 16th of November 2012, at Mama Mombasa Building I Kitale Trans-Nzoia County, the appellants were found dealing in six Python skins and six leopard skins valued at Kshs.300,000/=. Following these events, the first appellant was jointly charged with the second appellant and another with three offences under Wildlife Conservation and Management Act, Cap 376 (the Act). On the first count, they faced a charge of possession of game trophy, contrary to section 42 (1)(b) of the Act. On the second count the appellants faced a charge of dealing in game trophy contrary to section 43(4) of the Act. On count three, the charge was that of failing to make a report of obtaining possession of a game trophy contrary to section 39(3) of the Act.

Upon a full trial, the appellants were convicted on the first and third counts and sentenced to two years imprisonment on the first count and six months imprisonment on the second count. Being dissatisfied with the trial court’s decision, the appellants had filed separate appeals which were later consolidated and heard together.

Their grounds for appeal were that the prosecution had not proved the case to the burden required. They particularly claimed that not a single police officer, including the investigating officer testified in court, that evidence from two witnesses conflicted and that their receptionist who was arrested and later released was not called up to testify. They claimed she would have been a crucial witness. The appellants also asserted that no expert witness was called to identify that the material items were indeed were game trophies.

Issuesi. Whether constructive possession was necessary for a conviction on charges related to

possession and dealing game trophies.

Relevant provisions of the LawWildlife Conservation and Management Act, Cap 376 Laws of KenyaSection 39(3)‘(3) Any person who—

a) fails to make a report required by subsection (2) of this section; or(b) is unlawfully in possession of, or unlawfully deals in, any Government trophy, shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment.’

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Section 42 (1)(b)‘Certificates of ownership for possession of trophies

(1) Save as otherwise provided by this Act, any person who is in possession of any trophy, or of any ivory or rhinoceros horn of any description, without also being in possession of a certificate of ownership in respect thereof shall be guilty of a forfeiture offence and—b) in any other case, be liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.’

Section 43(4)‘Any person who—(a) not being the holder of a dealer’s licence, carries on the business of a dealer; or(b) being the holder of a dealer’s licence, fails to comply with any condition to which the licence

is subject, shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment.’

Held1. The evidence presented by the prosecution witnesses had established without any particular

dispute that game trophies were found in a room at a lodge which was at the time occupied by several persons including the appellants. However, it was not made clear how the trophies were recovered and from whom among the five or six persons in the premises. It was also not made clear whether any or all of the people in the premises had necessary knowledge of the presence of the trophies. There was no credible linkage between the trophies and the appellants.

2. One of the witnesses had testified that three men were negotiating prices, and thereby implied that the game trophies belonged to them. The witness had not identified the two appellants as having been part of the three men; but stated that they were part of the arrested suspects.

3. Evidence with regard to the fact of possession was scanty and unreliable. Possession involved an element of control of the thing a person was said to have. Possession is the act of having and controlling property. Possession is the right under which a person could exercise control over something to the exclusion of all others. The aspect of possession that formed part of the offence was not established beyond reasonable doubt against the appellants.

4. It was not clear who among the five or so arrested suspects was in actual possession of the game trophies and whether any of them had them at the place where they were found. The element of constructive possession could not in the circumstances have arisen because the spot and the manner in which the trophies were found and recovered was uncertain. There was nothing to credibly suggest that the persons found at the material premise including the appellants had the necessary knowledge of the existence of the trophies at that place.

5. The trial court erred in finding that the possession of the game trophies by the appellant was proved by the prosecution. It was not the appellant’s obligation to prove the innocence by discrediting the prosecution evidence on possession. Proof of possession meant proof of all the three offences against the appellants. No such proof was achieved, the prosecution failed to prove its case and all charges against the appellants.

6. The appellants’ conviction on the first and the third counts was erroneous and was neither sound nor safe. The police were handed the arrested suspects and the game trophies so as to investigate and possibly arraign the suspects in court. The appellants were charged without any investigations as to whether they had committed any offence. This had pointed to lack of seriousness on the part of all those involved in bringing the matter to court, that is, the Kenya Wildlife Services Officials and the Police.

Appeal allowed convictions and sentences passed by the trial court against the appellants squashed.


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Republic v Joel Kiprotich Rotich & another

Difference between keeping and being in possession of animal trophy

Republic v Joel Kiprotich Rotich & another

Senior Principal Magistrate Court at Narok May 5, 2015AK Ithuka SPM


Criminal Practice and Procedure - establishing an offence of being in possession of animal trophy - difference between keeping and being in possession of animal trophy - whether there was a prima facie case established to prosecute the accused persons of the offences alleged as contrary to sections 92 and 95 of the Wildlife Conservation and Management Act - whether the accused persons were found in possession of ivory tusks and were dealing with government ivory Criminal Procedure Code (cap 75), section 215; Wildlife Conservation and Management Act , sections 92 and 95

Brief facts The two accused persons were arrested and charged with an offence of being in possession of elephant tusks contrary to section 92, and the charge with dealing in wildlife trophy contrary to section 95 of the of the Wildlife Conservation and Management Act. Charges of which were read to the two accused persons in Kipsigis, being the accused’s native language they preferred and understood. At the point of suspicion and in the quests to find out whether the accused persons were in possession of the tasks, the two accused persons were lured by the officers to sell 4 tusks at Kshs. 100, 000 per kg. The accused agreed and took the officers (willing buyers then) to a maize plantation and showed them the ivory.

Issues i. Whether the accused persons were found in possession of ivory tusks and were dealing with

government ivory.ii. Whether there was a prima facie case established to prosecute the accused persons of

the offences alleged as contrary to sections 92 and 95 of the Wildlife Conservation and Management Act

Held 1. The prosecution proved the case on the first count beyond reasonable doubt that the four

tusks were found in their possession without permit and such charges were substantiated by way of evidence.

2. The first count of being in possession of elephant tusk contrary to section 92 of the Wildlife Conservation and Management Act was subject to conviction under section 215 of the Criminal procedure Code

3. The two accused persons were found in possession of the tusks and arrested. Therefore, the offence of dealing with animal trophies was not proved beyond reasonable doubt. The accused persons were to be acquitted under section 215 of the criminal procedure code.

4. The difference between keeping and being in possession was not explained. No evidence was led to show that those were two different offences, they seemed duplication of offences and could not be sustained.

The accused persons were to serve five years in prison.

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Being in Possession of wildlife meat justifies the offence of being in wildlife gaming

Republic v Fredrick Mabiru Mogu & 3 others

Chief Magistrate’s Court at Naivasha April 9, 2015 E. Kimilu SRM


Evidence Law - evidence of tools used to commit a wildlife offence - tools and equipment’s found with the accused - being in possession of wildlife meat - where accused person jointly with others not before court were found in possession of wildlife meat - accused persons alleging that they were forced to slaughter the animal by the Kenya Wildlife Service Officers - Wildlife Conservation and Management Act, 2013, section 98

Brief factsThe second accused, Julius Irungu Mwangi together with his co accused were charged with an offence of being in possession of meat of wildlife species contrary to section 98 of Wildlife Conservation and Management Act. The evidence adduced was that at the time of arrest the Accused person jointly with others were in recent possession of a luggage which was inspected just to be found as game meat. They were arrested immediately.

They took suspects to the scene of the slaughter which was spilled with wet blood near a dam within Marula Conservancy farm. The accused in their defence claimed that they were forced to slaughter the animal by the Kenya Wildlife Service Officers.

Issue i. Whether accused person jointly with others not before court were found in possession of

wildlife meat

Held 1. The Accused person admitted that he slaughtered the animal and thus he could not deny the

offence on the other side. He was arrested in recent possession of game meat without any permit to trade in the same. He could not therefore claim that he was forced by the Kenya Wildlife Service Officers to slaughter the animal.

2. The prosecution case had proved its case beyond reasonable doubt. The offence of being in Possession of meat of wildlife species contrary to section 98 of the Wildlife Conservation and Management Act could stand.

The accused sentenced to pay court fine of Kshs. 200,000 or one year imprisonment in default

Republic v Fredrick Mabiru Mogu & 3 others

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Republic v Mike Ole Nkoruma & 2 others


The Magistrate’s Court has power to allow or decline withdrawal of a matter before it.


High Court at Homa Bay February 9, 2015D S Majanja, J

Criminal Revision No 93 of 2014

Criminal Practice and Procedure – withdrawal of criminal suits – claim where an accused was charged with the offence of transporting forest produce without a permit – claim where the prosecutor sought to withdraw those charges on the ground that the accused actually had the permit to transport the said forest produce – Criminal Procedure Code, section 87, 202, 210

Brief FactsThe accused were charged with the offence of transporting forest produce without a permit contrary to sections 52(1)(a)(2) and 55(1)(c) of the Forest Act, 2005. The accused pleaded not guilty and the matter was fixed for hearing on September 16, 2014. On that day the Prosecution Counsel applied to withdraw the case under section 87 of the Criminal Procedure Code on the ground that the transporter had a valid transport permit and that matter was not contested by the forest officer. The accused did not object to the application. In his ruling the magistrate held that the accused were brought to court after they had been found not having a permit and since the permit was not furnished to the court, he could not grant the application to withdraw the case. Consequently he rejected the prosecutor’s application and ordered the matter to proceed for hearing.

The prosecutor then applied to close his case whereupon the trial Court stated that since the prosecution was not ready to prosecute the matter the charges against the accused were to be dismissed under section 202 of the Criminal Procedure Code and each of the accused could be released unless lawfully held.

The Applicant sought by way of application, to determine whether the Principal Magistrate in declining to allow withdrawal of the case, exercised his discretion judiciously.

Issuesi. Whether the trial court exercised its discretion judiciously in declining to allow withdrawal

of the case

Relevant Provisions of the LawCriminal Procedure Code

Section 202Non-appearance of complainant at hearing

If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon

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such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.

Held1. The trial court exercised its discretion judiciously in disallowing the application for withdrawal

of the case. After the application was rejected, the applicant had the chance to either produce the permit or proceed with the case. He also had the opportunity to apply for an adjournment. Instead of exercising these options, he instead opted to close the prosecution case. The accused were acquitted under section 202 of the Criminal Procedure Code which dealt with non-appearance of the complainant.

2. Section 202 of the Criminal Procedure Code did not apply to the circumstances of the case as it was not one where the complainant failed to appear in court but one where the prosecutor had the opportunity to proceed with the case either by calling the witnesses or by applying for an adjournment. He opted not to present any evidence and closed his case. Once the prosecutor had closed his case, the magistrate had no option but to acquit the accused as they could not be called upon to make their defence in the absence of any evidence against them.

3. The acquittal, though, could have been under section 210 of the Criminal Procedure Code as the accused had no case to answer. Following the acquittal, the items seized from the accused could only be returned to them.

Application dismissed.


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Republic v Baktash Akasha Abdulla alias Baktash Akasha & 3 others

Wildlife Crimes Case Digest : 2016Wildlife Crimes Case Digest : 2016 35

Appellate Court revises bond terms from Kshs 5 Million to Kshs 30 Million so as to alleviate the temptation to flee


High Court at Mombasa February 9, 2015M Muya J


Criminal Practice and Procedure – extradition proceedings-grant of bail and or bond in extradition proceedings-circumstances to consider before granting bail in extradition proceedings- measures to be taken to discourage offenders from flying abroad in the process of extradition proceedings -what are the principles of granting bail in extradition proceedings- whether an appellate court could stiffen bond terms so as to alleviate the temptation to flee in serious offences-Constitution of Kenya, 2010, article 49; Extradition Act, section 14(3)

Brief facts The Respondents were charged with offences of conspiracy to import Heroid and conspiracy to import Metha Phelamin both contrary to the United States Code. The magnitude if the offences warranted that the offences were punishable by maximum of life imprisonment.

During extradition proceedings, the Respondent applied for bail pursuant to article 49 of the Constitution read together with section 14 (3) of Extradition Act.

Displeased with the order and grant of bail, the Director of Public Prosecution, DPP filed a revision pursuant to the Criminal Procedure Code in the High Court seeking order of stay of the Chief Magistrate’s orders granted on December 1, 2014 that had granted the Respondents bond but with several salient conditions together with variations of lower court orders and to place the Respondents in custody pending the hearing and determination of the extradition proceedings.

According to the DPP, if the Respondents were released on bond there was no guarantee that they would avail themselves in Court as the terms and conditions were lenient. The Respondents had been given a bond of Kshs 5 million. They contended that the trial magistrate erred in law by granting bail to the respondents following a renewed application for bail, the Respondent having previously been denied bail on an earlier application without any legal or factual basis yet there were no substantive new facts presented before the court to warrant change of circumstances. Therefore such variations were not substantiated and were not in line with the law.

The DPP further contended that there were compelling reasons to deny the respondents bail.

Issues i. What are the principles of granting bail in extradition proceedings?ii. Whether there was an obstacle in the way of filing an appeal on a matter which the Judge

had substantially made findings on the bond application which had amounted to almost a final decision

iii. Whether an appellate court could stiffen bond terms so as to alleviate the temptation to flee in serious offences

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Held1. The main principle was that in extradition proceedings, bail would be granted only under

special circumstances.2. In Kenya, the issue of right to bond was provided under article 49 (i)(h) of the Constitution

that every person had a right to be released on bond or bail on reasonable conditions pending a charge or trial unless there were compelling reasons not to be released.

3. It is trite law that the primary consideration was whether the accused person would attend court and would be available at the trial and that all factors and circumstances ought to be considered with the central principal in mind.

4. In the instant case, the court having made the finding that there was nothing incorrect, illegal or improper in the manner in which the trial court handled the bail application; a Court of concurrent jurisdiction could not purport to arrive at a different position. To do so, amounted to sitting on an appeal on a decision made by a fellow Judge.

5. In the instant case, the Respondents faced extradition proceedings which were quite serious in nature and the temptation to flee was not far-fetched. The trial court had granted a bond of Kshs. 5 million with two sureties of similar amount. The circumstances obtaining in the instant extradition proceedings warranted stiff bond terms of Kshs 30 million with two sureties of similar amount for each respondent so as to alleviate the temptation to flee.

Appeal allowed. The Respondents were to report to the investigating officer three (3) days in a week , that is Mondays, Wednesdays and Fridays at 10:00 a.m.


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Abdi Mohammed v Republic


Reasonable conditions for amount of bail or bond terms ought to be considered when granting bail or bond


High Court at Kericho December 17, 2014H.I. Ong’udi, J

Criminal Miscellaneous Application No17 of 2014

Constitutional Law - fundamental rights and freedoms - rights of arrested persons - right to bail and bond - claim that there were valid reasons to warrant hefty bail terms - whether there were valid reasons to warrant the hefty bail terms – Constitution of Kenya 2010, article 49 (1)( h)

Brief FactsThe application sought to alter or reverse the lower court’s order dated November 27, 2014 which denied the applicant bond. The applicant was admitted to Cash Bail of Shs. 5,000,000/=. Further, an application to the court for the variation of the bail terms was declined. An officer of Kenya Wildlife Service Narok filed an affidavit opposing the release of the applicant on bond. He averred that the applicant was a notorious wildlife trophy dealer who had cases at Narok Law Courts. He further said the identity of the applicant was questionable. The state counsel relied on the investigating officer’s affidavit and opposed the applicant’s release on bond. She submitted that the applicant’s identity was unknown as he had failed to produce his identity card.

Issuesi. Whether there were valid reasons to warrant the hefty cash bail of KShs. 5,000,000 imposed

on the accused person.

Relevant provisions of the lawThe Constitution of Kenya, 2010Article 49(1(h)An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

Held1. The record did not show that the prosecutor said anything that could have informed the

decision to give the accused person a hefty cash bail of Shs. 5,000,000. The information in a Mr. Evans Odhiambo’s affidavit, a ranger if it was to be believed, should have been relayed to the prosecutor in the court that took plea. The court ought to have been informed of the issues of similar cases at Narok Law courts plus the issue of failure to produce an identity card. Having failed to present that information to the court of first instance, the investigating officer could not come before the court and purport to act as if that information was what justified the slamming of the cash bail on the applicant.

2. The Law is such that one is presumed innocent until proved guilty. Bond or bail could only be denied when the prosecution raised substantial grounds believing that:a. The accused would fail to turn up at his trial or to surrender to custody b. The accused would commit further offences.c. He/she would obstruct the course of justice.

The prosecution had not in any way established any of the grounds.

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3. There was an allegation that the applicant had a similar case before Narok Law Courts whose particulars were given as PCR NO. This ought to have been a police case number and not a court file number.

4. The applicant had been first arraigned in court on November 21, 2014. The prosecution did not apply to have him remanded in custody for further investigations on his nationality. After this court ordered that the applicant’s identity card be produced in court on December 16, 2014 the same was produced. It was therefore not true that any investigations on his nationality were being carried out.

5. After the said production of the identity card, the state counsel informed the court that the State was agreeable to the Revision of the bond terms. This was an abdication of duty by the officers concerned.

6. The bail terms set by the Bomet Senior Resident Magistrate’s court were too excessive. The magistrate’s refusal to vary the bail terms was without any valid reason.

Application allowed, orders set aside, the applicant released on a bond of shs. 2 million with a surety in the sum of shs. 1 million, in the alternative a Cash bail of KShs. 500,000/=.


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Republic v Baktash Akasha Abdalla & 3 others


Jurisdiction of the High Court to review the decisions of the subordinate courts arrived at in exercise of their judicial powers


High Court at Mombasa December 8, 2014M Odero, J


Criminal Procedure – Revision – power of the High Court to call for records – where a party is aggrieved by the decision of the subordinate court – whether the High Court can review the decision of the subordinate Court arrived at within the discretion of the court – Criminal Procedure Code, section 362.

Brief factsThis was an application for revision. The Applicant sought by way of application, to have the ruling of the Chief Magistrate varied and/or reversed. The Chief Magistrate granted to the accused persons bail of Kshs. 5 million plus two (2) Kenyan sureties of a similar amount during the pendency of extradition proceedings filed against them. Issuesi. Whether the High Court can review the decision of the subordinate court arrived at in exercise

of its discretion.

Relevant Provisions of the LawCriminal Procedure CodeSection 362

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court.

Held1. The grant of bail by the trial court was perfectly legal and proper. The trial magistrate acted

well within his mandate and powers in considering and exercising his discretion to grant bail to the respondents. The grant of bail is a discretionary power granted to a court. The presiding judicial officer is required to consider the bail application, weigh it against constitutional and legal provisions and make a decision one way or another. The Chief Magistrate gave due and thorough consideration to the application for bail made on behalf of the accused persons. His lengthy ruling was evidence of that fact.

2. The High Court would only be required to intervene by way of review where there was evidence of an injudicious exercise of the discretion to grant bail by the trial court. The Hon. Chief Magistrate carefully considered and analyzed all relevant areas of law, and he did also consider and analyze the objections to the grant of bail made by the DPP before exercising his discretion in favour of granting bail. There was nothing incorrect, illegal or improper in the manner in which the Chief Magistrate handled the bail application or in the manner in which he exercised his legal discretion in the matter.

3. The applicant ought to have approached the High Court by way of appeal seeking to reverse

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the decision to grant bail. The applicant would then proceed to place arguments before the High Court with a view to persuading it that given the circumstances pertaining in the case the exercise of the trial magistrate’s discretion in favour of granting bail was wrong. The exercise of the discretion to grant bail has not shown to have been improper. The Chief Magistrate has full legal backing donating to him such discretion.

4. What was in issue was the decision which the Hon. Chief Magistrate reached in the exercise of that discretion, which was a matter of appeal. The arguments raised by the applicant were all factors which would amount to arguments available upon appeal to reverse the decision of the trial court. There was no basis upon which to review the decision of the Chief Magistrate. The avenue of appeal however remained open and available to the applicant.

Application dismissed

i. Applicant granted seven (7) days within which to file and serve an appeal.ii.Ordered the stay of the ruling of the Chief Magistrate granting the respondents bail pending the filing of any such appeal


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Republic v Eric Mugendi and another


Accused persons convicted of possession of government trophies

Republic v Eric Mugendi and another

Resident Magistrate Court at Isiolo December 1, 2014R G Mundia, RM


Environmental Law – wildlife – wildlife crime – possession of government trophy – offence of dealing in government trophy without a license – offence of failing to make a report on possession of government trophy – Wildlife Conservation and Management Act, section 39, 42

Brief Facts:The accused persons were charged with 3 counts. In count 1, they were charged with being in possession of government trophy contrary to section 42(1)(b) of the Wildlife Conservation and Management Act. Count 2 was dealing in government trophy contrary to section 39(3)(b) of the Wildlife Conservation and Management Act while Count 3 was failing to make a report contrary to section 39(3)(a) of the Wildlife Conservation and Management Act.

Issue:i. Whether the prosecution proved that the accused persons knew or ought to have known that

they were in possession of government trophies.

Held:1. The 1st accused person being a former Kenya Wildlife Service ranger / a trained officer ought

to have been inquisitive as to what items he was carrying. Both accused persons ought to have known what was in the bag. No carrier could blindly transport an item without asking his customers what they were. The 1st accused person was a trained officer. He knew better and should have effected arrest on the mysterious customer.

2. The evidence as adduced by the prosecution did not arouse any suspicion on the court’s mind that the accused was framed. The evidence was consistent.

Accused persons convicted on all the three counts.a)With regards to the first count, both accused persons were each fined Ksh. 10,000/-; in default they were to serve two years imprisonment.b)With regards to the second count, both accused persons were each fined ten thousand shillings; in default they were to serve twelve months imprisonment.c)With regards to the third count, both accused persons were each fined ten thousand shillings; in default they were to serve twelve months imprisonment.

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Can foreigners convicted of being in possession of game trophy contrary to section 95 of the Wildlife Conservation and Management Act be admitted to bail pending appeal?

Ngo Hong Quan & 2 others v Republic

High Court at Nairobi November 19, 2014L Kimaru, J

Misc. Criminal Application No 251, 252 and 253 of 2014

Criminal Procedure – Bail and Bond – factors to consider before the grant of bail - claim seeking admission to bail – claim where accused persons on their own plea of guilt were convicted and thus applied for bail pending the hearing and determination of their appeal - whether the accused persons merited being admitted to bail pending the hearing of their appeal.

Brief FactsThe applicants were all foreigners who instituted the application to be admitted to bail pending the hearing and determination of their appeals. They had been charged with various counts of being in possession of game trophy contrary to section 95 of the Wildlife Conservation and Management Act, 2013.

Issuei. Whether the accused persons merited being admitted to bail pending the hearing of their appeal.

Held:1. The applicants could not be released on bail pending the hearing of their respective appeals

because they were foreigners who could be tempted to flee from the jurisdiction of the court if they were released on bail.

2. The applicants had no fixed abode in Kenya. They were unlikely to get Kenyan sureties to post bond on their behalf.

3. As regards their appeals, the Court was not persuaded that the applicants had a prima facie case with high chances of success.

Application dismissed

Ngo Hong Quan & 2 others v Republic

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Mutisya Kiema v Republic


Section 92 of the Wildlife Conservation and Management Act, 2013 does not create an offence


High Court at Voi October 8, 2014 M Kasango, J

Criminal Appeal 7 of 2014

Criminal Practice and Procedure – penal provision - whether section 92 of the Wildlife Conservation and Management Act, 2013 created an offence.Criminal Practice and Procedure – penal provision - Whether an accused person could be charged and/or convicted under Section 92 of the Wildlife Conservation and Management Act, 2013 that only provided the punishment provision but did not make provision for the circumstances under which a person was deemed to have committed the offence.Words and phrases – definition of protected area - a clearly defined geographical space recognized, dedicated and managed through legal or other effective means, to achieve long-term conservation of nature with associated ecosystem services and cultural values – Section 2 of the Wildlife Conservation and Management Act, 2013.

Brief factsThe appellant had been charged along with another person on two counts of offences under the Wildlife Conservation and Management Act, 2013. The first count was the offence of being in possession of a wildlife trophy contrary to section 95 as read with section 92 of the Wildlife Conservation and Management Act, 2013. The particulars of the first count were that the 2 accused were jointly found in possession of a wildlife trophy, namely an elephant tail with street value of Kshs. 500 without a permit. The particulars of the second count were that the two accused persons were jointly found in possession of hunting apparatus.

The two accused persons pleaded guilty to the two counts. They were convicted on their own plea of guilty and fined Kshs. 1,000,000/- in default to serve five years in jail for count one and Kshs. 200,000/- in default to serve one year in prison for count two.

The appellant filed the instant appeal and raised seven grounds of mitigation. The appellant did not challenge the conviction or sentence but only expressed his remorsefulness and raised factors for mitigation.

Issues1. Whether section 92 of the Wildlife Conservation and Management Act, 2013 created an

offence.2. Whether an accused person could be charged and/or convicted under Section 92 of the

Wildlife Conservation and Management Act 2013 that only provided the punishment provision but did not make provision for the circumstances under which a person was deemed to have committed the offence.

3. Whether a minimum sentence entered on a plea of guilty can be said harsh and excessive.

Relevant provisions of the lawWildlife Conservation and Management Act, 2013

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Section 2“protected area” means a clearly defined geographical space, recognized, dedicated and managed through legal or other effective means, to achieve long-term conservation of nature with associated ecosystem services and cultural values;

Section 92‘Any person who commits an offence in respect of an endangered or threatened species or in respect of any trophy of that endangered or threatened species shall be liable upon conviction to a fine of not less than twenty million shillings or imprisonment for life or to both such fine and imprisonment.’

Section 95‘Any person who keeps or is found in Possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.’

Held1. Section 95 of the Wildlife Conservation and Management Act, 2013 dealt with offences

that related to wildlife trophies and trophy dealing. Section 92 was restricted to offences in respect of endangered or threatened species or their trophies only. Section 3 of the Act defined both endangered species and threatened species as wildlife species specified in the Fourth Schedule of the Act. However the Fourth Schedule of the Act dealt with provisions as to public consultations and did not contain a list of endangered species. Section 47 of the Act provided that critically endangered, vulnerable, nearly threatened and protected species were to be found in the sixth schedule to the Act. The list of endangered or threatened species was therefore found in the sixth schedule to the Act.

2. The African elephant was listed in the Sixth Schedule to the Act as one of the endangered species. The appellant, charged with being in possession of an elephant tail, was therefore charged with an offence relating to an endangered species.

3. Section 92 of the Act was more of a punishment provision rather than a penal provision. The section only provided for the punishment for the offences in respect of endangered species or their trophies but did not itself create the offence. Section 92 only provided for punishment but did not make provision for the circumstances under which a person was deemed to have committed the said offence. Section 92 of the Act was ambiguous and did not state the relevant offences.

4. The Act did not provide for what exactly amounted to the offence relating to the endangered species. It was not possible to tell what an accused person did or failed to do so that the person could be said to have committed an offence relating to endangered species. It was legally untenable to charge a person under section 92 of the Act only, the appellant could not have been charged under that section alone. That is why he was charged under both section 92 and 95 of the Act.

5. It posed a great legal challenge to the court when a person is charged under both section 92 and 95 of the Act because the two Acts provided different penalties for the respective offences under them. It would be uncertain which sentence to pass in a case where a person was charged with offences under both sections.

6. The intention of the drafters of the Act was to create a severe punishment for offences related to endangered species. However they only made provision for punishment in section 92 but


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omitted to create the offence itself. The Wildlife Conservation and Management Act, 2013 was a step in the right direction, but the act required some polishing to ensure the intended purpose was achieved. It was recommended that these observations be brought to the attention of the relevant authorities for appropriate action.

7. Charging the appellant under section 92 and 95 did not render the first count defective. Section 179 of the Criminal Procedure Code provided for the conviction of an accused person for a lesser offence than that which the person was charged with.

8. The sentence passed against the appellant was the minimum sentence provided in law. The trial magistrate was not harsh. There was no reason to interfere with the conviction and sentencing under count one.

9. On the second count, the Act defined a protected area as a clearly defined geographical space recognized, dedicated and managed through legal or other effective means, to achieve long-term conservation of nature with associated ecosystem services and cultural values. The charge sheet had not indicated whether Kalimani area where the appellant was arrested was a protected area for purposes of the Wildlife Conservation and Management Act, 2013. It was a major component of the charge that the prosecution ought to have clearly stated for the offence under the second count to succeed. Article 50(2) of the Constitution of Kenya 2010 provided that one of the elements of the right to a fair trial was a right of the accused to be informed of the charge with sufficient detail to answer it.

Conviction and sentence on count one upheld, conviction and sentence on count two quashed and set aside.

The court invoked section 179 of the Criminal procedure code and reduced the offence that the appellant was charged with under both sections 92 and 95 of the Act to the offence under section 95 only. Until the Act is amended to create the offences restricted to endangered species, suspects should be charged under section 95 of the Act only.

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A property anticipated for forfeiture cannot be sold by the owner lest the sale becomes calculated to defeat justice

Republic v Domnic Gumo

Senior Principle Magistrates Court at Narok September 26, 2014AK Ithuku SPM


Environmental Law - forest conservation-offence of removing forest produce contrary to the law-court convicting the owner of motor vehicle used to ferry cedar posts camphor without a permit from the Kenya Forests Service–court ordering forfeiture of the motor vehicle that was sold contrary to the court order - effect of transportation of forest produce in the absence of a transport permit from the Kenya Forests Service Forests Act (cap 385) section 52 (2) (b) Criminal practice and procedure - forfeiture-forfeiture of property to the State-order of forfeiture of a motor vehicle as a tool or implement used in committing the offence of illegally transporting forest produce- whether the Motor vehicle sold to the third party was purchased legally - effect of registration of such vehicle in a third party - What were the consequences of selling the vehicle by the accused contrary to a court order that required the accused to come with the vehicle every hearing- Criminal Procedure Code (cap 75) Section 389A (2)

Brief facts On May 22, 2013, the accused person was found transporting 85 cedar posts valued at Kshs 17,000 in a motor vehicle without a transportation permit from the Kenya Forests Service contrary to section 52 (1) (a) as read with section 52 (2) (b) of the Forest Act.

The accused in his defence stated that he bought the posts in Narok town at the value of Kshs. 12,000 and produced a receipt as exhibit for the purchase. He further produced an agreement showing that he had bought land and that he was fencing with the posts. It was contended that the exhibits were not genuine and appeared as though they were made for the case.

The motor vehicle used to carry the posts was temporarily freed from being forfeited on the condition that the said vehicle should be availed to the court at each hearing date.

On the day of the hearing it was apparent that the accused had sold the vehicle and transferred to a 3rd party. The sale was found illegal since it was in defiance of the court order that required him to be coming with a vehicle every hearing.

On April 4, 2014 Robert Mwangi Wamuyu (The applicant 3rd party) applied to the court for a release of the motor vehicle claiming that he was the legal owner of the motor vehicle. The applicant alleged that he bought the car from the accused and as such it could not be forfeited since he was an innocent purchaser.

Issuesi. Effect of transporting forest produce in the absence of a transport permit from the Kenya

Forests Serviceii. Whether the exhibits produced before the court to show purchase of the posts were genuine

to waive prosecution


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iii. Whether the Motor vehicle sold to the third party was purchased legally and what was the effect of registering such a vehicle in a third party?

iv. What were the consequences of selling the vehicle by the accused contrary to a court order that required the accused to come with the vehicle every hearing?

Held1. The Forests Act required anybody transporting forests produce to have a movement permit

where there was no such permit and or exhibit were not genuine as was in the instant case, the posts were forest produce. The case was proved by the prosecution beyond reasonable doubt.

2. The accused person was transporting the timber from unspecified place and without a permit. The exhibits produced to show purchase of timbers appeared not genuine and were basically made for the case. The issue of permit was mere and less admitted. The Forest Act required anybody transporting forest produce to have a movement permit. The fact that the accused did not know that he was required to have a permit did not help his defence. Ignorance of the law is no defence. The prosecution’s case was beyond reasonable doubt.

3. Section 52 (i)(a) of the Forest Act provided sanctions for lack of permit while transporting forest produce and in the instant case the accused following his guilt was fined Kshs 50, 000 or 6 months in jail.

4. The sale by the accused person was calculated to defeat justice and against the court order that required him to produce the vehicle as exhibit at every hearing. The 3rd party (Robert Mwangi Wamuyu) having purchased the Motor vehicle from the accused which was an exhibit, that sale was tainted and the accused was seeking to benefit from his mischief. The accused ought to refund the money to the 3rd party. The motor vehicle purported to have been sold to the 3rd party was for forfeiture.

5. The act of selling the Motor vehicle could not be allowed to stand. The said motor vehicle registration No. KBT 413Z belonged to the accused person at the time of the commission of the offence. He used it for criminal purposes. The motor vehicle was for forfeiture pursuant to section 389A (2).

Accused convicted. Application by the 3rd party dismissed. Motor vehicle KBT 413Z forfeited

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Accused fined Kshs 20 million on a charge of keeping wildlife trophies

Republic v Simon Kiprotich Towett

Senior Resident Magistrate Courts at Narok September 1, 2014T A Sitati SPM


Words and Phrases – definition of terms “keep” or “keeper” – means one who has the care and custody or management of something and who is usually legally responsible for it - Black’s Law dictionary 9th Edition (Garner) Words and Phrases – definition of terms possession – the fact of having or holding property in one’s power; the exercise of dominion over property. Black’s Law Dictionary (9th Edition) at page1281

Brief factsThe accused was charged with an offence of keeping wildlife trophy without permit contrary to section 95 as read with section 92 of the Wildlife Conservation and Management Act. The trophies weighed 8kgs and were valued at Kshs 80,000.

The Accused was arrested and taken to the Narok Police Station and the tasks were equally handed over to the custody of the police. Before arresting the accused, the arresting officers had been informed that the accused and another who escaped arrest were selling the tasks (wildlife trophies) .

They lured the Accused that they wanted to purchase the tasks and asked that they be shown the tasks before purchase after which the accused was then arrested while the other culprit escaped.

The Accused person testified that he was arrested while he was looking for his lost livestock.

Issues i. Whether the charges against the Accused were proved beyond reasonable doubt as required

by law. ii. What is the meaning of the term “keep” or who is a keeper?iii. What is the distinction between “keeping” and “possession?

Held 1. There was overwhelming evidence that the Accused and another suspect had hidden in the

bush the elephant tusks.2. A keeper is one who has the care and custody or management of something and who was

usually legally responsible for it. In the instant case the accused had the custody of the trophies which justified the element of keeping to once actual physical custody or management of an item. Therefore the Accused was guilty and would not escape conviction.

3. Section 2 of the Penal Code, provided that being in possession of or having in possession included not only having in one’s own personal possession but also knowing anything in the actual possession or custody of any other person or having anything in any place whether belonging to or occupied by oneself or not for the use of or benefit of oneself or any of them.

4. It further implied that; if there were two or more persons and any one or more of them with the knowledge and consent of the rest had anything in his or their custody or possession, it


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should be deemed and taken to be in the custody and possession of each and all of them.5. Possession was a fact of having or holding property in one’s power; the exercise of dominion

over property. It further meant the right by which one could exercise control over something to the exclusion of all others; the continued exercise of claim to the exclusive use of material object.

6. From the clear evidence adduced, the Accused exercised ownership and claimed rights of what he was found keeping. That made him a possessor.

The Accused was to pay a fine of Kshs 20 million on each count or life imprisonment in default. The tasks were to be forfeited to Kenya Wildlife Service for destruction.

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The Testimony of a crucial witness is necessary to prove a case beyond any reasonable doubt.

Nachuri Lemuna v Republic

High Court at Nakuru June 30, 2014A. Mshila J


Criminal Practice and Procedure - possession - constructive possession - Whether constructive possession was necessary where an accused is charged with being in possession of a firearm/ammunition - section 89(1) of the Penal Code.Evidence Law - burden of proof - burden of proof in criminal cases - Whether prosecution can prove a case beyond reasonable doubt if it fails to call a crucial witness.

Brief factsThe appellant was charged on two counts under the Penal Code. The first count was the offence of being in possession of a firearm contrary to section 89(1) of the Penal code. On the second count, the accused was charged with being in possession of six rounds of 303 inches ammunition and one cartridge contrary to section 89(1) of the Penal Code.

The Particulars of the first charge were that on 7th March, 2011 at Ngaruni Location in Samburu East District within Rift Valley province, without reasonable excuse had in her possession a firearm namely MK-IV S/No. 95L5600 in circumstances which raised reasonable presumption that the said firearm had recently been used in a manner prejudicial to public order. The particulars of the second charge were that the Appellant on the above mentioned date and place, without reasonable excuse had in her possession six rounds of 303 inches ammunition and one cartridge of 7.62 x 51 mm in circumstances which raised reasonable presumption that the ammunition was intended to be used in a manner prejudicial to public order.

The trial Court convicted and sentenced the appellant on both counts and sentenced her to serve four years on each count. The sentences were to run concurrently. Being aggrieved with the decision of the trial court, the appellant filed the instant appeal. The grounds of appeal were that the trial court had erred in law and fact by convicting the appellant without the evidence of the investigating officer, for finding that the prosecution had proven its case beyond reasonable doubt and for passing a harsh and excessive sentence.

Issuesi. Whether constructive possession was necessary where an accused is charged with being in

possession of a firearm/ammunition.ii. Whether the prosecution can prove a case beyond reasonable doubt if it fails to call a crucial

witness.

Relevant Provisions of the LawPenal CodeSection 89(1)

‘89. (1) Any person who, without reasonable excuse, carries or has in his possession or under his control any firearm or other offensive weapon, or any ammunition, incendiary material or explosive in circumstances which raise a reasonable presumption that the


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firearm, ammunition, offensive weapon, incendiary material or explosive is intended to be used or has recently been used in a manner or for a purpose prejudicial to public order is guilty of an offence and is liable to imprisonment for a term of not less than seven years and not more than fifteen years.’

Held1. What emerged from the evidence presented by three prosecution witnesses was that the

appellant was not found in actual or physical possession of the firearm nor in possession of the rounds of ammunition at the time of arrest. The evidence had pointed to the fact that the firearm and ammunition were all found inside the house that belonged to the appellant.

2. A manyatta is a compound consisting of several houses. Evidence was presented to show that there were other houses in the manyatta/compound. There was no evidence adduced by any of the prosecution witnesses to prove that apart from the Appellant there were no other persons in occupation of other neighboring houses. Further the court took judicial notice of the fact that the houses had no doors.

3. It was incumbent upon the prosecution to have shown that there were no other persons around and to have demonstrated that the appellant had exclusive access to her house and exclusive possession of the rifle and the ammunition.

4. Failure to demonstrate that the appellant had exclusive access left a presumption that other persons from the other houses could have had access to the appellant’s house. There was doubt on the element of access and possession. Where any doubt arose, the benefit of doubt would be in favour of the accused, the instant applicant.

5. The investigation officer was not summoned by the prosecution to testify. There was no evidence to support the fact that the appellant had demonstrated or knew how the rifle worked or was capable of using a firearm.

6. The counts were unproven as the investigating officer was found to be a crucial witness and ought to a have been summoned by the prosecution to testify on the investigations carried out to show that the appellant was capable of using a firearm and to show the manner in which the firearm had been used that was prejudicial to the public.

7. The prosecution had failed to prove beyond reasonable doubt the element of possession in particular that the appellant had exclusive possession of the rifle and rounds of ammunition.

Appeal allowed.

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Game trophies must be produced and identified as evidence in court to prove a conviction of being in possession of a game trophy.

Boniface Ngugi Wanjiru v Republic

High Court at Nairobi June 25, 2014A. Mbogholi J


Criminal Practice and Procedure – sentencing – sentence of a fine of Kshs. 10,000 in default to serve one year imprisonment for the offence of being in possession of a game trophy - whether a sentence of a fine of Kshs. 10,000 in default to serve one year imprisonment for the offence of being in possession of a game trophy was below the prescribed penalty - section 95 of the Wildlife and Conservation Management Act, 2013.Evidence – presentation of evidence – presentation of a game trophy - whether an accused person can be convicted of being in possession of a game trophy when the game trophy is not presented or identified in court.Evidence - identification of evidence – identification of a game trophy - whether an accused person can be convicted of being in possession of a game trophy when the game trophy is not presented or identified in court.

Brief factsThe appellant was charged with being in possession of a game trophy contrary to section 95 of the Wildlife and Conservation Management Act, 2013. The appellant pleaded guilty and was convicted and sentenced to pay a fine of Kshs. 10,000 in default to serve one year imprisonment.

The matter had been forwarded to the instant court under section 363(2) of the Criminal Procedure Code for revision because the sentence imposed was below the minimum prescribed by the law.

Issuesi. Whether a sentence of a fine of Kshs. 10,000 in default to serve one year imprisonment for

the offence of being in possession of a game trophy was below the prescribed penalty.ii. Whether an accused person can be convicted of being in possession of a game trophy when

the game trophy is not presented or identified in court.

Relevant provisions of the lawWildlife and Conservation Management Act, 2013Section 95

‘Any person who keeps or is found in Possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.’


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Criminal Procedure CodeSection 363(2)363. Subordinate court may call for records of inferior court

‘(2) If a subordinate court acting under subsection (1) considers that a finding, sentence or order of the court of lower class is illegal or improper, or that the proceedings were irregular, it shall forward the record with its remarks thereon to the High Court.’

Held1. Section 95 of the Act provided that upon conviction, the accused person was liable to a fine

of not less than Kshs. 1 million or imprisonment for a term of not less than five years or both. The sentence imposed by the learned trial magistrate was below the prescribed penalty.

2. The alleged game trophy was not identified or produced in court as evidence when the prosecutor stated the facts to the trial court. No report was made or produced to confirm that what the accused person was found with was a game trophy related to an elephant skin. That was a grave omission and fatal to the prosecution case.

3. The accused was unpresented and whatever happened was prejudicial to him. In mitigation the accused said that he had picked the subject matter thinking it was a Maasai stick. It was the officer who informed him that the item was an elephant stick. It was clear that his plea was not unequivocal and at that point, the learned trial magistrate should have entered a plea of not guilty.

4. An order of retrial would generally be made where interests of justice demand. It was not the mistake of the accused person that the alleged trophy was not produced. If a retrial were to be ordered the prosecution would have an opportunity to fill the gaps that existed on the record. That was prejudicial to the accused. The order for retrial was denied.

The proceedings before the trial court were set aside in their entirety, accused released.

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Said Fara Abdi & 2 others v Republic

Wildlife Crimes Case Digest : 2016

A sentence of one year imprisonment for the offence of entering a National park with livestock is excessive


High Court at Mombasa June 5, 2014M Muya J


Criminal Practice and Procedure – conviction – conviction on a charge that lacked the particulars of the offence - whether accused persons could be convicted for an offence when the facts and particulars in the charge sheet did not contain the elements of the offence.Criminal Practice and Procedure – sentence – sentence of one year improvement for entering a National park with Livestock - whether a sentence of one year imprisonment for the offence of entering a National park with livestock was harsh and excessive – section 102 (3) of the Wildlife Management and Conservation Act, 2013.

Brief factsThe three appellants were charged with two counts in the Wildlife Conservation and Management Act, 2013 and one count under the Environment Management and Coordination Act. The first count was the offence of entering a National Park contrary to Section 102 (1) (a) of the Wildlife Conservation and Management Act, 2013. In the second Count, they were charged with entering a National Park with livestock contrary to Section 102 (3) of the Wildlife Management and Conservation Act, 2013. In the third Count, they were charged with using the environment and natural resource and Wasteful and destructive means contrary to measures prescribed under 140(2) of the Environment Management and Coordination Act.

All the appellants pleaded guilty to all three counts; however the trial court discharged them from the third count for lack of a report from the National Environment Management Authority (NEMA). The appellants were convicted and each fined Kshs. 200,000/= in default to serve one year Imprisonment on the 1st Count. On the second count, each appellant was convicted and fined Kshs. 100,000, in default one year imprisonment.

The appellants filed an appeal in the instant Court in which they claimed that the trial court did not take into account the fact that the appellants never understood the charges facing them for they were not well versed with either English or Kiswahili languages, which medium the charges were read to them. Neither did they understand the interpretation offered to them at the trial court. They claimed that interpretation was offered in Somali language whereas one of the accused was an Orma and the other a Wardei.

Issuesi. Whether accused persons could be convicted for an offence when the facts and particulars

in the charge sheet did not contain the elements of the offence.ii. Whether a sentence of one year imprisonment for the offence of entering a National park

with livestock was harsh and excessive.

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Relevant provisions of the LawWildlife Management and Conservation Act, 2013Section 102(1)(a)

‘(1) Any person who-(a)enters or resides in a national park or reserve otherwise than under licence, permit or in the course of his duty as authorized officer or a person lawfully employed in the park or reserve, as the case may be;’

Section 102(3)‘(3)Any person who contravenes subsection (2) commits an offence and is liable upon conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months.’

Held1. The record of proceedings showed that the plea was taken in Swahili language and that the

appellants replied in Swahili language. The following procedure was to be used in taking a plea:

a. The charge and all the essential ingredients should have been explained to the accused in their language or a in a language they understood.

b. The Accused own words should have been recorded and if they were an admission, a plea of guilty should be recorded;

c. The prosecution should then immediately state the facts and the Accused should then be given an importunity to dispute or explain the facts or to add any relevant facts

d. If the Accused does not agree to the facts or raises any question of his guilt, his reply must be recorded and change of plea entered If there is no change of plea a Conviction should be recorded and a statement of the facts relevant to Sentence together with the Accused’s reply should be recorded.

2. A reading of the facts showed that they only related to the offence of entering a National Park contrary to section 102 (1) (a) of the Wildlife Conservation and Management Act, 2013. The charge under section 102(1) required that it be shown that the appellants had no license, permit or were not authorized officers. This was not indicated in the charge sheet read to them. However they disclosed the offence of entering into a National Park with livestock contrary to section 102(2) as read with section 102(3) of the Act.

3. On the 2nd count, each accused was fined Kshs 100,000 in default one year imprisonment. The fine of Kshs 100,000 imposed on the appellants was legal, the sentence of one year imprisonment in default was not as the section provided for a term not exceeding six months.

Orders:a) Conviction on the first count squashed and sentence set aside.b) The sentence on the second count was substituted with a fine of Kshs. 100,000 in default six

months imprisonment for each of the three accused personsc) In the event the accused had served the 6 month imprisonment, the accused were to be set

at liberty.

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Kenya Wildlife Service uniformed officers not under supervision of the Inspector General of the National Police Service

Kahindi Lekalhaile & 4 others v Inspector General National Police Service & 3 others

High Court at Nairobi November 12, 2013(Constitutional & Human Rights Division) M Ngugi, J

Petition No 25 of 2013

Administrative Law-wildlife conservation-Kenya Wildlife Service-structure and command of the Kenya Wildlife Service-whether the Kenya Wildlife Service uniformed officers were under the supervision of the Inspector General of the National Police Service-Constitution of Kenya, 2010 article 239,243 and 245 –Wildlife(Conservation and Management)Act section 3 and 3B Constitutional Law-fundamental rights and freedoms-right to access information- whether the Inspector General of the National Police Service could be compelled to undertake an audit and publish the findings on the status of the ivory stock pile and other government trophies-Constitution of Kenya, 2010 article 35 Environmental Law-wildlife conservation-poaching-role of National Police Service in conservation and management of wildlife-whether the Inspector General of the National Police Service could be compelled to undertake an audit and publish the findings on the status of the ivory stock pile and other government trophies - Constitution of Kenya, 2010 article 247 Jurisdiction-High Court- whether the High Court has jurisdiction to declare that the uniformed and disciplined officers of the Kenya Wildlife Service fell under the supervision of the NPS-Constitution of Kenya article 94 and 247

Brief facts This petition arose out of the petitioners’ concern at the rising incidence of poaching of elephants and rhinos which posed a serious threat to tourism in Kenya. Under the right to access information as envisioned under article 35 of the Constitution of Kenya, 2010, the petitioners sought to have an audit of the ivory stock pile and other government trophies held by the Kenya Wildlife Service (KWS) and other private establishments set up for the conservation of wildlife following reports that such stock had illegally found its way into the black market.

The petitioners also sought to have a clarification of the place of the Kenya Wildlife Service within the national security framework. KWS was established under section 3 of the Wildlife (Conservation and Management) Act as a body corporate with its functions and management provided for under the Act. Under Section 3B of the Act, KWS was to be managed by a Board of Trustees headed by a director and comprising persons set out in the section. Such persons included the Commissioner of Police and a representative of the Permanent Secretary in the Office of the President responsible for Internal Security. The petitioners claimed that the current structure at the KWS which did not place the Deputy Director Security and the uniformed and disciplined officers under the direct supervision of the National Police Service (NPS) was unconstitutional. The National Police Service was established under article 243 of the Constitution. The office of the Inspector-General of the National Police Service was established to exercise independent command over the NPS and perform any other functions prescribed by national legislation.


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It was the petitioners’’ contention that due to the importance attached to wildlife; in particular elephants and rhinos, the increased incidents of poaching and the constitutional obligations of the National Security organs to promote and guarantee security, all the efforts directed towards the protection of wildlife ought to be done under the supervision of the NPS.

KWS however submitted that it was not one of the national security organs set out under Chapter 14 of the Constitution, it did not provide national security, and its role was affected mainly within national parks, national reserves and other protected wildlife sanctuaries. KWS further argued that article 247 of the Constitution mandated Parliament to enact legislation establishing “other police services” under the supervision of NPS and the command of the Inspect General of the Service and hence the High Court lacked jurisdiction to declare that the uniformed and disciplined officers of the Kenya Wildlife Service fell under the supervision of the NPS.

Issuesi. Whether uniformed and disciplined officers of the Kenya Wildlife Service were police officers

and therefore under direct supervision of the National Police Service and the command of the Inspector General of Police.

ii. Whether the delinking of the Kenya Wildlife Service (KWS) from the direct supervision of the National Police Service (NPS) and the command of the Inspector General of the National Police Service was unconstitutional.

iii. Whether the Inspector General of the National Police Service could be compelled to undertake an audit and publish the findings on the status of the ivory stock pile and other government trophies held in stores of the Kenya Wildlife Service and other public, private and community establishments involved in wildlife conservation.

iv. Whether the Court could direct the National Police Service Commission, the Inspector General and the Director, Kenya Wildlife Service to institute reforms to revamp the uniformed and disciplined department of the Kenya Wildlife Service.

Constitution of Kenya, 2010 Article 35 (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation. Article 94 (1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. (2) Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty. (3) Parliament may consider and pass amendments to this Constitution, and alter county boundaries as provided for in this Constitution.

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(4) Parliament shall protect this Constitution and promote the democratic governance of the Republic. (5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation. (6) An Act of Parliament, or legislation of a county, that confers on any State organ, State officer or person the authority to make provision having the force of law in Kenya, as contemplated in clause (5), shall expressly specify the purpose and objectives for which that authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority. Article239 (1) The national security organs are— (a) the Kenya Defence Forces; (b) the National Intelligence Service; and (c) the National Police Service. (2) The primary object of the national security organs and security system is to promote and guarantee national security in accordance with the principles mentioned in Article 238 (2). (3) In performing their functions and exercising their powers, the national security organs and every member of the national security organs shall not— (a) act in a partisan manner; (b) further any interest of a political party or cause; or (c) prejudice a political interest or political cause that is legitimate under this Constitution. (4) A person shall not establish a military, paramilitary, or similar organisation that purports to promote and guarantee national security, except as provided for by this Constitution or an Act of Parliament. (5) The national security organs are subordinate to civilian authority. (6) Parliament shall enact legislation to provide for the functions, organisation and administration of the national security organs. Article 243 (1) There is established the National Police Service. (2) The National Police Service consists of— (a) the Kenya Police Service; and (b) the Administration Police Service. (3) The National Police Service is a national service and shall function throughout Kenya. (4) Parliament shall enact legislation to give full effect to this Article. Article 245 (1) There is established the office of the Inspector-General of the National Police Service.


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(2) The Inspector-General— (a) is appointed by the President with the approval of Parliament; and (b) shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation. (3) The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission Article 247 Parliament may enact legislation establishing other police services under the supervision of the National Police Service and the command of the Inspector-General of the Service. Wildlife (Conservation and Management) Act Section 3 (1) There is hereby established a uniformed and disciplined service to be known as the Kenya Wildlife Service. (2) The Kenya Wildlife Service shall be a body corporate with perpetual succession and a common seal and shall have power to sue and be sued in its corporate name and to acquire, hold and dispose of movable and immovable property for the purposes of the Service and this Act. Section 3B (1) The Service shall be managed by a Board of Trustees of the Service which shall, subject to section 3C, consist of— (a) a chairman appointed by the President; (b) the Permanent Secretary in the Ministry for the time being responsible for matters relating to Wildlife; (c) the Permanent Secretary in the Ministry for the time being responsible for Finance; (d) the Permanent Secretary in the Ministry for the time being responsible for Local Government; (e) the Commissioner of Police; (f) the Director of Forests; (g) a representative of the Permanent Secretary in the Office of the President responsible for Internal Security; (h) the Director of Veterinary Services; (i) not more than six other trustees to be appointed by the Minister from amongst persons who are conversant with nature conservation in all its aspects Held1. The National Police Service and the Kenya Wildlife Service are expressly established under

different legal regimes to discharge different functions and are under different chains of command structures.

2. Article 243 of the Constitution which provided for the composition of the NPS, did not anticipate the KWS which neither fell under the Kenya Police nor the Administration Police Service in line with article 243. It was also worth observing that article 239, which provided for the National Security organs as the Kenya Defence Forces (KDF), the National Intelligence Service (NIS) and the National Police Service (NPS), did not include the KWS.

3. It was an inescapable fact that the Constitution did not oust other legislation that was in existence prior to its enactment. The Constitution was given effect through the legislative framework enacted by Parliament in exercise of the legislative powers conferred under article 94. It had to also not be assumed that the people of Kenya, in passing the Constitution in its present form, were oblivious of the existence of other services established under other

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legislation, in this case the KWS established under the provisions of the Wildlife (Conservation and Management)Act.

4. The Court did not have the mandate to fill in legislative gaps and supplant the intention of Parliament. The role of the Court was to interpret the Constitution and the law in line with the intended meaning and not to legislate. The petitioners sought not the interpretation of the law, but the supplementing of the legislative role. These proposals for reform were better directed to the right forum, the national legislature.

5. In order for the right to information to be justiciable, it had to be established that the person seeking the information had sought the information and access to such information had been denied. In the instant case, no request for information had been made to the respondents. The enforcement of the right could not therefore be said to have crystallized. (Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 others Nairobi Petition No. Petition No. 278 of 2011.)

6. The prayer requiring the Court to compel the KWS to carry out an audit of the ivory stock and other government trophies also failed as it required the Court to compel KWS to undertake a duty which was not within its mandate. Section 39 of the Act vested property in trophies in the Government. In view of the principle of separation of powers and the fact that these were matters of policy, the Court, in the absence of constitutional or rights violations, had no reason to interfere with the respondents’ respective mandates.

Petition dismissed with no costs.


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Joseph Leboo & 2 others v Director Kenya Forest Services & another


Management of Forests to be in accordance with the Constitution


Environment & Land Court at Eldoret October 1, 2013S Munyao, J

Environment & Land No 273 of 2013

Environmental Law - forests-forest conservancy and management- where there was a dispute over the management of a forest by the Kenya Forest Service-where it was alleged that there was no public participation in the management of Lembus Forest -whether a community that was a beneficiary of a forest had capacity to commence proceedings against the illegal and irregular harvesting of timber and fuel wood materials, from the subject forest-Constitution of Kenya, 2010 article 42, 69 and 70- Environmental Management and Coordination Act section 3(4)-Forests Act section 4 and 45- Forest Participation in Sustainable Forest Management Rules rule 5 and 13Civil Practice and Procedure - institution of suits-parties to a suit- whether the Director of Kenya Forest Service could be sued in their capacity as a director

Brief factsThe application by the plaintiffs who were Committee Members of the Lembus Council of Elders against the Director of Kenya Forest Service (1st defendant) and the Forest Co-ordinator within Baringo County (2nd defendant), was as a result of the alleged illegal allocation of pre-qualified and unqualified saw millers to harvest timber and fuel materials from the Lembus forest, without involving the community and following the laid down procedure as per the Forest Participation in Sustainable Forest Management Rules and the Forests Act.

The defendants however submitted that the saw millers harvesting trees in Lembus forest were qualified saw millers who were awarded tenders to harvest trees, that the trees allocated to each saw miller were specific and that most plantations marked for felling were over mature. The defendants further stated that the harvesting of plantation trees could not be equated to massive destruction of the forest, as the process was regulated through harvesting plans to ensure sustainability. The defendants also contended that the court had no jurisdiction to grant an injunction against Kenya Forest Service which was a government agency and that the plaintiffs were an amorphous body without capacity to sue.

Issuesi. Whether a community that is a beneficiary of a forest has capacity to commence proceedings

against the illegal and irregular harvesting of timber and fuel wood materials from the forest.ii. Whether public participation is mandatory in the management of forests.iii. Whether the Director of Kenya Forest Service could be sued in their capacity as a director.iv. Whether the failure to state all statutory provisions relied upon in an application made the

application defective and preclude an applicant from relying on provisions that had not been indicated.

Environmental Management and Coordination Act Section 3(4)

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A person proceeding under subsection (3) of this section shall have the capacity to bring an action notwithstanding that such a person cannot show that the defendant’s act or omission has caused or is likely to cause him any personal loss or injury provided that such action— (a) is not frivolous or vexatious; or (b) is not an abuse of the court process. Forests ActSection 41. There is hereby established a Service to be known as the Kenya Forest Service.2. The Service shall be a body corporate with perpetual succession and a common seal and shall,

in its corporate name, be capable of—

1. suing and being sued;2. acquiring, holding, charging and disposing of movable and immovable property; and3. doing or performing all such other things or acts for the proper discharge of its functions

under this Act.

(3) The headquarters of the Service shall be in Nairobi. Section 451. Any activities within a forest area which are not included in a management plan shall only be

undertaken with the consent of the Board granted in accordance with this section.2. A person intending to undertake any activity referred to in subsection (1) within a forest area

shall apply in that behalf to the Board, and the application shall be accompanied by the results of an independent Environmental Impact Assessment conducted in respect of the proposed activity.

3. Where the Board intends to grant its approval under this section, it shall cause a notice of such intention to be published in the Gazette and in at least two newspapers of national circulation, and posting a notice in such manner as to bring to attention of the persons likely to be directly affected by such activity, and giving a period of not less than ninety days within which any person may make objections to the Board.

4. The Board shall deliberate on any objection received and deliver its decision to the objector within a period of sixty days from the date of receipt thereof.

5. Any objector aggrieved by a decision of the Board under this section may within sixty days after receipt of such decision appeal to the High Court.

Forest Participation in Sustainable Forest Management RulesRule 51. The Service shall prepare or adopt a management plan covering a period of at least five years

in respect of every state forest.2. A person who wishes to make an application to the Service for an authorisation under these

rules shall prepare a site-specific forest management plan in accordance with guidelines prescribed by the Service.

3. The Service shall evaluate the site-specific forest management plan submitted under paragraph (2) based on social, economic, environmental and sustainability factors and shall, with or without modification, review and approve the application.

4. A person authorised under these rules to undertake activities for more than one year shall prepare an operations plan for every year, on which all operations shall be based, and activities shall not commence unless such operations plan has been approved by the Service.

5. The Service shall evaluate the operations plan prepared under paragraph (4) to ensure that it


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conforms to the site-specific management plan and to sustainable forest use.6. The Service shall not issue an authorization without a site-specific plan in place, except

for forest management agreements and permits for minor activities not significantly and irreversibly affecting forest resources.

Rule 131. The Service shall, once every year, pre-qualify suitable persons for the harvesting of timber in

state forests following the procedure set out in this rule.2. The Service shall invite applications for pre-qualification by placing a notice—

1. at a conspicuous place at the Service Headquarters;2. in two newspapers of national circulation; and3. on the website of the Service, or equivalent electronic means available to the public,

detailing where a person can obtain an application form for pre-qualification, where the completed application form may be submitted, and when submission is due.

1. An application under paragraph (2) shall be made to the Service and shall— (a) specify the name of the applicant, and where the applicant is a business entity, or a forest

association, shall be accompanied by the appropriate registration documents;(b) present a statement of the applicant’s technical and financial capacity to harvest timber; and(c) specify the area where they would be interested in conducting harvests. (4) The Service may forward applications to the appropriate forest conservation committee for evaluation and recommendations. Constitution of Kenya, 2010 Article 42 Every person has the right? to a clean and healthy environment, which includes the right—(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and (b) to have obligations relating to the environment fulfilled under Article 70. Article 69(1) The State shall—(a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;(b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;(c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;(d) encourage public participation in the management, protection and conservation of the environment;(e) protect genetic resources and biological diversity;(f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment;(g) eliminate processes and activities that are likely to endanger the environment; and(h) utilise the environment and natural resources for the benefit of the people of Kenya. (2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources.

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Article 70 (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. (2) On application under clause (1), the court may make any order, or give any directions, it considers appropriate—(a) to prevent, stop or discontinue any act or omission that is harmful to the environment;(b) to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment; or(c) to provide compensation for any victim of a violation of the right to a clean and healthy environment. (3) For the purposes of this Article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury. Held1. The suit raised fundamental questions on the management of forests which is a public good.

In an environmental matter locus standi as known and applied under the common law is not applicable. A reading of articles 42 and 70 of the Constitution made it clear that one did not have to demonstrate personal loss or injury in order to institute a cause aimed at the protection of the environment. This position was in fact the applicable position and still was the position under section 3(4) of the Environmental Management and Coordination Act (EMCA) which preceded the Constitution of Kenya, 2010.

2. The plaintiffs had filed this suit as representatives of the local community and also in their own capacity. The community had an interest in the preservation and sustainable use of the forest as their very livelihoods depended on the proper management of the forest. Even if they had not demonstrated such interest, that would not have been important as any person who alleged a violation of any law touching on the environment was free to commence litigation to ensure the protection of such environment.

3. There was no provision in law which barred any suit against the Director of the Kenya Forest Service (KFS) in that capacity. Neither was there any law which barred any suit against the very person who was in charge of the forests, which in the instant case was the 2nd defendant. Although it would have been best to sue or at least enjoin KFS as defendants in the cause, there was however no law broken in suing the Director of KFS and the Baringo County Forest Co-ordinator. In any event an appropriate amendment could be made to introduce KFS into the suit without changing in any way the character of this litigation.

4. There was no law that stated that an injunction could not issue against the KFS. KFS was not a government agency but a statutory body created by section 4 of the Forests Act and a suit against KFS or against any of its personnel was not a suit against the Government. The provisions of the Government Proceedings Act did not apply to the KFS or to a suit against its personnel.

5. It was desirable practice to have all statutory provisions relied upon in an application stated but failure to do so did not make the application defective and neither did it preclude the applicant from relying on statutory provisions that had not been indicated.

6. Public participation is an important component of environmental management as enshrined in article 69 of the Constitution. No sort of public participation had been demonstrated


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by the respondents apart from stating that 60 community scouts were hired from Esageri Community Forest Association (CFA). The applicants averred that they needed to be consulted in any exploitation of the forests and even if the respondents thought that the applicants did not deserve to be involved, then they ought to have involved CFAs which had not been demonstrated.

7. Section 45 of the Forest Act required a management plan and any activities not included in the management plan, required consent of the Board of Kenya Forest Service, but for which an Environmental Impact Assessment (EIA) had to be conducted. Rule 5 (1) of Forest Participation in Sustainable Management Rules (FPSM) required a 5 year management plan for every forest and Rule 5 (6) of FPSM Rules barred KFS from issuing any authorization without a site-specific plan in place.

8. Without a management plan it was difficult to be convinced that the trees being harvested were over-mature and that there was a plan to ensure continuity of the forest after harvesting. Without a management plan it was highly doubtful whether the respondents or KFS could issue permits for felling and harvesting of trees. Further without a management plan to show what trees and when planted were to be harvested there could be a probability that the trees being felled were not the proper trees and that they were being felled by persons who had not gone through the pre-qualification process contemplated by the Forests Act.

9. The issues raised by the applicants in the suit questioned the manner in which the respondents and KFS conducted their affairs and how they managed the forest. They not only raised weighty issues of sustainable management of forests but also questioned the integrity of the whole process leading to the harvesting of trees. The respondents had to clearly demonstrate that they were operating above board and within the confines of the law.

10. It was argued that the trees marked for felling were over-mature and therefore loss of revenue could be occasioned if they were not harvested. However no material was given to show when the trees were planted, their optimum harvest period and when they were to be harvested. In any event, trees ought not to be considered purely on the basis of their commercial value. That would be a narrow way of looking at an important resource such as trees. Trees sustain biodiversity, are important carbon sinks and their value to the environment far surpasses the narrow view of trees as being purely commercial in nature and that applied for plantation forests as well.

11. Assuming that the case of the applicants was doubtful, the balance of convenience still tilted in favor of the applicants. Where the interests of environmental protection and those of private individuals out to make a profit are weighed, the interest of environmental protection ought to far outweigh those of private individuals.

Orders1. Pending the hearing and determination of this suit, the respondents and their agents/assigns

and any person authorized by them, or by the Kenya Forest Service, are restrained from harvesting trees or timber or removing any tree materials from Sabatia, Maji Mazuri, Kiptuget, Chemususu, Naivasha, Koibatek, Chemurgok, and Esegeri Blocks of Lembus Forest.

2. The costs of the application to be in the cause.

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Circumstances where an automatic forfeiture order can be issued

Republic v Mutinda Kitonyi

Senior Principle Magistrates Court at Narok September 19, 2013T.A Sitati SPM


Criminal Practice & Procedure - forfeiter - forfeiter of property - when can the Court order forfeiter - when can forfeiter be automatic - whether there was any need for the owner of the track trailer to show cause why his track trailer should not be forfeited - Forests Act (cap 385) section 55 (1).

Brief facts On September 15, 2013 on a normal patrol around Melelo-Ololulunga Road, an officer from the Kenya Forest Service Rangers came across a truck carrying 500 cedar posts. The driver had no permit for transporting cedar. He was arrested and taken to Narok police station where the driver was charged. The truck was escorted to Kenya Forestry Service Office for safe keeping. The driver pleaded guilty to the charge and the owner of the track was given a 7 days to show cause why his motor vehicle should not be forfeited.

Issuesi. Whether there was any need for the owner of the track trailer to show cause why his track

trailer should not be forfeited

Held1. It was settled by the Superior Court in the case of Muya v. Republic wherein the Superior

Court considered a similar question under similar provision and ordered forfeiture, it was thus unnecessary to proceed under the notice to show cause under section 55 (1) of the Forests Act. In such cases the forfeiture was automatic.

Accused fined Kshs. 150, 000 in default 2 years imprisonment.

Motor vehicle and trailer forfeited together with 500 cedar posts were forfeited forthwith to Kenya Forestry Service.

Republic v Mutinda Kitonyi

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Biemei Chen v Republic


The High Court has no powers to entertain a matter for revision of sentence when no appeal is lodged


High Court at Nairobi September 5, 2013L A Achode, J


Criminal Procedure and Practice – Revision – power of the High Court to call for records – where an accused person applies for revision of sentence and fails to file an appeal – whether the High Court can revise sentence imposed by the trial court – Criminal Procedure Code, section 362.

Brief FactsThe Applicant was charged with three Counts of offences under the Wildlife (Conservation and Management) Act, Chapter 376 of the Laws of Kenya, namely: being in possession of game trophies without certificate of ownership contrary to Section (42(1) (b), dealing in game trophy without a dealer’s license contrary to Section 43(4) and failing to report possession of game trophy contrary to Section 39(3) (a). The Applicant was convicted on her own plea of guilty in all three counts and sentenced to serve 8 months imprisonment in Count I, 15 months’ imprisonment in Count II and 8 months’ imprisonment in Count III respectively.

The Applicant sought by way of application, to revise the sentence imposed by the subordinate court. The Application was based on the ground that the trial Court imposed custodial sentences without considering the option of fine as provided for by the law. Issuesi. Whether the High Court could revise the sentence imposed by the trial court.

Relevant Provisions of the LawCriminal Procedure CodeSection 364

When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

Held1. The High Court had jurisdiction under the Criminal Procedure Code to review the orders

of the lower Court. The scope of revision proceedings was prescribed in Section 362 of the Criminal Procedure Code. The provision empowered the Court to determine the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. It was not every order of the lower Court that could be challenged by way of a revision. Section 364(5) of the Criminal Procedure Code limited the instances when revision could be invoked.

2. The Applicant had not challenged the conduct of proceedings. In fact, the Applicant was convicted on her own plea of guilt. The proper channel for the Applicant to ventilate issues challenging the sentence was by way of an appeal since this was a matter the Applicant could have appealed. The Applicant therefore, by this Application, brought a matter that could have

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been dealt with in appeal proceedings. The High Court was under no obligation to entertain the issues raised in the Application.

3. Assuming that the Application was properly before the Court, the sentence imposed by the trial Court was not harsh. The sentences prescribed in the law for the charges facing the Applicant allowed for either the imposition of a fine, an imprisonment term or both. Considering the severity of the charges facing the Applicant, The sentence imposed was not excessive. There had been increased concern in the country over the growing poaching of wild animals particularly elephants. Furthermore, the value of the ivory beads recovered from the Applicant was estimated at Kshs. 1,221,088. The fines imposed by the law, were between Kshs. 10,000 and 20,000 respectively. An imposition of the sentence of a fine alone would not reflect the gravity of the charges against the Applicant. The reasons advanced for consideration of a fine instead of a custodial sentence did not hold.

4. While the Applicant was truly remorseful for her conduct, the interest of public policy demanded that persons convicted of offences served the sentences imposed according to the law. Public interest demanded that whatever went on in a criminal trial had to be in the interest of justice; justice demanded that the guilty be appropriately punished and the innocent be left free.

5. An appellate Court would not interfere with the discretion of a trial Court on the sentences imposed or orders issued unless they are demonstrably illegal or manifestly harsh in the circumstances of the particular case. By opting to impose a custodial sentence without the option of a fine, the trial Magistrate acted within her discretion. The sentences imposed were not demonstrably harsh or manifestly excessive. The sentences imposed by the trial Court were within the law which provided for maximum custodial sentences of up to 3 years in Count I, 5 years in Count II and 5 years in Count III respectively. The High Court could under Section 354 of the Criminal Procedure Code, upon being satisfied that there were sufficient reasons alter a sentence imposed by the trial Court. The power had to be exercised judiciously.

6. The Court could not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they could have passed a somewhat different sentence. The Court would not ordinarily interfere with the discretion exercised by a trial judge, unless, it was evident that the judge had acted upon some wrong principle or overlooked material factors. Therefore there was no basis for interfering with the orders of the trial Court.

Application dismissed.


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Evans Obudo v Republic


Effects of plea of guilt vis a vis the plea of not guilty to a charge


High Court at Eldoret June 14, 2012F. Azangalala


Criminal Procedure and Practice – sentencing – principles of sentencing – effects of admission of guilt vis a vis plea of not guily in wildlife crimes - what is the effect of plea of guilt vis a vis the plea of not guilty to a charge.Criminal Procedure and Practice - fines-substitution of fines - circumstances when fines imposed on an accused could be reduced by the appellate court- what are the circumstances that would result to an appellate court substituting fines imposed on an accused person in wildlife crimes Brief factsThe Appellant and two others were jointly charged with two offences of transporting forest produce without permit contrary to section 52 (a) (1) (b) as read together with subsection 2 of the Forests Act and being in possession of forests produce contrary to section 54 (1) (b) of the said Act

It was alleged that on the July 18, 2011 around midnight the forest officer, during their patrol along Songor –Kapere road in Nandi County, came across a motor vehicle. The officers stopped the said Motor vehicle which had three occupants (appellant and two others) and conducted a search and found that the appellant was transporting 135 bags of charcoal without permit. The appellant admitted the charge, but claimed to have been employed to transport them to his boss. He pleaded that he was not the owner of the charcoal.

The trial court convicted the Appellant and fined him Kshs 108, 000 on each of the counts and in default, 1 year imprisonment. The appellant was dissatisfied with both his conviction and sentence and therefore appalled before the High Court against both conviction and sentencing. He claimed to have been treated differently from his co- accused in sentencing

Issues i. What is the effect of a plea of guilt vis a vis the plea of not guilty to a charge of wildlife crimeii. What are the circumstances that would result to an appellate court substituting fines imposed

on an accused person in wildlife crimes

Held 1. The fact that the Accused denied ownership of the charcoal did not negate his plea. He

clearly admitted transporting and being in possession of the charcoal without a permit from the Director of Forest Service

2. The second count of being in possession of the same bags of charcoal should have been charged in the alternative. In the premises conviction, could only be in respect of one of the counts and not both. The conviction of the appellant on the second count was not proper and the purported admission of the appellant was inconsequential.

3. The Appellant had admitted the charges and there was no basis treating the appellant more severely than his co-accused who had denied the charges and were fully tried. Indeed the fact that the Appellant pleaded guilty should have been favourably considered when determining

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the appropriate sentence to be meted out to him but no consideration seems to have been given to that fact.

4. Given the mitigating circumstances stated by the appellant and the fact that he pleaded guilty at the first opportunity, he did not deserve a more severe punishment than his co-accused.a. Appeal against sentencing allowed. b. Conviction on the second count quashed. c. The Appellant’s conviction on the first count dismissedd. Kshs 108,000 on each count imposed upon the appellant by the lower court set aside

and substituted with a fine of Kshs 20,000 on count one (1) or the Appellant to serve six (6) months imprisonment in default


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Francis Mureithi Ndungu v Republic


Effect of orders given by Court without following the rules of natural justice

Francis Mureithi Ndungu v Republic

High Court at Nairobi May 17, 2012F A Ochieng, J

Revision Case No 27 of 2012

Criminal Practice and Procedure – application for revision orders – claim seeking revision of orders granted by the trial Magistrates Court in respect to the sentence and conviction of the applicant – claim where the applicants alleged that the orders granted by the trial Magistrate ordering the forfeiture of a motor vehicle to the state were made without following the rules of natural justice – claim where the said motor vehicle was alleged to have been used in transporting forest produce without a lawful permit contrary to section 54(1)(a), (b) and (e) of the Forest Act.

Brief FactsThe applicant sought revision orders against the orders of the trial magistrate. He had been convicted for the offence of Transporting Forest Produce without a lawful permit contrary to section 54(1)(a), (b) and (e) of the Forest Act. He was convicted on his own plea of guilt. The trial court ordered that the said 140 bags of charcoal be forfeited to the state together with the vehicle in which they were being ferried. The applicant thus alleged that the order to forfeit to the state the vehicle in which the said 140 bags of charcoal were being ferried was against the rules of natural justice since the owner of the said motor vehicle in question had not been afforded an opportunity to be heard.

Issuei. Whether the applicant was entitled to the revision orders sought.

Held:1. From the Court record, it was clear that the trial court was alive to the need to have the owner

of the vehicle given an opportunity to show cause why the vehicle should not be forfeited. Regrettably, however, as the Prosecution did not seek the forfeiture of the Vehicle, and because the applicant had no reason to respond to something that had not been asked for, the order for the forfeiture of the vehicle was made prematurely. It was therefore irregular.

2. The order for the forfeiture of the vehicle ought not to have been made without first giving to the owner of the vehicle an opportunity to be heard. The rules of natural justice dictated that before any person was condemned, such as through forfeiture of his property or the deprivation of his right to freedom, the Court had to give him a hearing.

3. Ideally, the instant Court should have then referred the case back to the trial court, to enable the learned trial magistrate give an opportunity to the owner of the vehicle to show cause why her vehicle could not be forfeited to the state. However, the instant court also noted that the owner of the vehicle had made available documents to demonstrate that she was indeed the owner of the said vehicle. In effect she had demonstrated why the vehicle should not have been forfeited to the state. In the circumstance, there was no need to still refer the matter back to the trial court. Such a step would simply have been a duplication of the exercise which the instant court had already undertaken.

Application allowed. Court directed that the Mitsubishi Fighter Lorry, Registration Number KAX 754R was to be released forthwith to the owner.

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The Courts may give orders in respect to property found on an accused person that has not been produced as exhibit

David Muigai Macheru v Kenya Forest Service & another

High Court at Nairobi February 16, 2012F A Ochieng, J


Criminal Procedure and Practice – restitution of property – property found on accused person – where the property found on accused person is not produced as exhibit during the trial – whether the court has power to issue orders regarding a property that has not been produced as exhibit during the trial, Criminal Procedure Code, section 177.

Brief FactsThe appellant was charged with the offence of being in Possession of Sandalwood, a protected tree species, contrary to Section 34 (1) and (2), as read with Section 54 (8) (d) and Section 55 (1) (c ) of the Forest Act; and Gazette Notice No. 3176 of April 4, 2007. He pleaded not guilty. About a month later, the Attorney General submitted a Nolle Prosequi. After the trial court entered the said Nolle Prosequi, the proceedings against the appellant were duly terminated.

However, the sandalwood together with the truck on which the said wood was being transported, was not released to the Applellant. That prompted the Appellant to seek orders for the release of the sandalwood and the truck. The application was premised on the fact that there was no case pending against the Appellant in relation to either the truck or the sandalwood. The trial court ordered that; the truck be released to the appellant and the sandalwood be destroyed as a small token to conservation. That order for the destruction of the sandalwood prompted the Appellant to move to the High Court, seeking a reversal.

The court set aside the orders for the destruction of the sandalwood and ordered that the sandalwood be released to the Appellant. When the orders were served upon the Kenya Forest Service, it declined to release the sandalwood. Instead, it filed the instant application for the reversal of the orders dated 14th June 2011. The Kenya Forest Service also asked that the whole issue be considered afresh, because, in its considered view, the issue in question involved a substantial constitutional matter. It also alleged that the sandalwood was contraband, which therefore ought not to be released to the appellant, regardless of the termination of the criminal charges.

Issuesi. Whether the trial court had power to issue orders on a property that had not yet been produced

as an exhibit before the trial court, by the time the court ordered that it be destroyed.

Relevant Provisions of LawCriminal Procedure Code

Section 177 Where, upon apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order –(a) that the property or a part thereof be restored to the person who appears to the court


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to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.

Held1. Conservationmattersaremuchmorethanatrifle.Theyaredescribedasmattersofgreat

public interest. The Forest Act was anchored on the need for conservation and the public interest in conservation is to be secured by the Kenya Forest Service.

2. Pursuant to section 177 of the Criminal Procedure Code, there was no requirement that the court before which the person was charged had to have received the property as an exhibit before the court could give orders in relation thereto. Provided that some property was taken from the accused when he was apprehended, (whether such recovery was made before, at the time of, or after the actual arrest), the court before which he was charged could issue orders relating to the property.

3. Therewereinstanceswhenanaccusedcomplainedthatpoliceofficerstookawaysomeofhis property, which they did not cite in the charge sheet. In effect, the police had no intention to produce such property as exhibits before the trial court. Even in such instances, the court would have jurisdiction to issue appropriate orders relating to the property.

4. In the instant case, the particulars of the charge indicated that the sandalwood which the appellant was transporting was the property of the Kenya Government. If the property belonged to the government, the appellant could not have been compelled to pay Duty on it. Indeed, if the property belonged to the government, the appellant would most probably have also been charged with either theft or the handling of stolen property. It therefore appeared that the assertion of ownership, as cited in the charge sheet, was a bare statement, not backed with any substantive or tangible right.

5. The word contraband isdefinedbythe“OxfordAdvancedLearner’sDictionary”as;Goodsbrought into or taken out of a country illegally. But whether or not the sandalwood was contraband was a matter which could only be determined by a court of competent jurisdiction after the said court had received evidence and submissions. However, before any evidence was led by the prosecution, the Attorney General had the case terminated. Therefore, the courts had not had the opportunity to adjudicate on the question as to whether or not the sandalwood was contraband.

6. The charge preferred against the appellant was not premised on the contention that the sandalwood was contraband. The charge was in relation to the fact that the appellant was in possession of a protected species of sandalwood. In order to prove that the sandalwood was of the protected species, the prosecution would have had to lead evidence. But because the proceedings were terminated before any evidence was led, it would not be possible for proof to be tendered to prove that the sandalwood in question was of the protected species.

7. There could be no basis, in law, for depriving the appellant of the sandalwood which belonged to him. The release of the sandalwood would not constitute a dilution of the efforts to conserve forests in general, or sandalwood in particular. If any person was in possession of a proscribed item, he had to be prosecuted to the end. If he was convicted, it would be almost obvious that the subject matter of the offence would be either forfeited to the state or would be destroyed. But it was almost a contradiction in terms for the Attorney General to terminate proceedings, (resulting in the sustenance of the presumption of innocence on the part of the accused person), yet thereafter demand that the subject matter of the criminal case be either forfeited to the state or be destroyed.

8. In as much as there was need for everybody to support the Kenya Forest Service in its noble role of conservation, the order for the destruction of the sandalwood lacked the backing of

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the law.

The sandalwood be escorted to the border, to ensure that it was exported into the United Republic of Tanzania.

Obiter Dictum

“Let the Attorney General work hand in hand with the Kenya Forest Service in such other cases, so that we do not have any other situations in which the Attorney General terminates proceedings, but the Kenya Forest Service nevertheless insists that the subject matter of the terminated proceedings be destroyed or forfeited.

Furthermore, let the Kenya Revenue Authority also be roped in, so that they do not demand and receive payment of Duty for items which are thereafter said to be contraband or otherwise unlawful.

We have a challenge to develop a seamless procedure that will aid Kenya in its efforts at conservation. Let the experience from this case be a valuable lesson in the development of a system that will strengthen conservation.”


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Lucy Nduta Kamau v Republic


Licencees to municipal land do not own the trees in the municipal land


High Court at Nyeri March 25, 2011JK Sergio,n J


Land law – licence – ownership rights of a licencee – licencee ownership of fixtures and fittings - whether a licencee to municipal land owned the trees in the municipal land.Criminal Practice and Procedure – conviction and sentence – charge of willfully and unlawfully cutting down standing trees - whether a person with a lawful permit to cut down trees could be convicted and sentenced for willfully and unlawfully cutting down standing trees - section 334 (c) of the penal code

Brief factsThe appellant was granted a licence to operate a kiosk at mortgage housing scheme, Bondeni on 17th May 1985. The licence gave her authority to set up a kiosk in the land. In 1992 the land was leased to a third party, the complainant herein. There were some indigenous trees standing on the land in dispute. The appellant was said to have cut down the trees. The complainant filed a complaint with the police that set off the events of this suit.

The appellant was tried on a charge of two counts. The first count was a charge of willfully and unlawfully cutting down standing trees contrary to section 334 (c) of the Penal Code. The second charge was forcible detainer contrary to section 91 of the Penal Code. The appellant was convicted and sentenced to pay a fine of Kshs 30,000 and Kshs. 20,000 for counts one and two respectively, in default to serve 6 months imprisonment for each count.

Dissatisfied with the judgment of the trial court, the appellant filed the instant appeal.

Issuesi. Whether a licencee to municipal land owned the trees in the municipal land.ii. Whether a person with a lawful permit to cut down trees could be convicted and sentenced

for willfully and unlawfully cutting down standing trees contrary to section 334 (c) of the penal code.

Relevant provisions of the lawPenal CodeSection 334(c) 334. Setting fire to crops, etc.

‘Any person who willfully and unlawfully sets fire to, cuts down, destroys or seriously or permanently injures—

(c) any standing trees, saplings or shrubs, whether indigenous or not, under

cultivation.’

Held1. The appellant was aware that the plot where her kiosk stood belonged to the Municipal

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Council and that was why she had sought for the Council’s authority to cut down the trees. The trial court had erred in concluding that the trees belonged to the complainant.

2. The trees were within the Council’s jurisdiction and there was need to apply for authority to cut such trees under the Municipal by-laws, which the appellant did. The appellant had not acted unlawfully; she was authorized by the municipal council to cut down trees.

3. There was no dispute that the appellant was given a temporary occupation licence to occupy the suit land in 1985. In 1992, the complainant obtained a lease hold. At the time of obtaining the lease the appellant was in occupation. There was no evidence to show that the appellant was given reasonable notice by the Council to vacate the suit land in terms of the temporary occupation licence.

4. The trial court erred when it convicted the appellant on both counts.

Conviction quashed, sentence set aside and all fines that may had been paid refunded.


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Rotina Mkikuyu & another v Republi


High Court has powers to vary the nature of sentence

Rotina Mkikuyu & another v Republic

High Court at Mombasa February 15, 2011J B Ojwang, J


Criminal Practice and Procedure – Appeals – Appeals from the subordinate courts – Appeals to the High Court - powers of the High Court – where there is an appeal on sentence – whether the High Court can interfere with sentence either by reducing or increasing or altering the nature of the sentence – Criminal Procedure Code, section 354.

Brief factsThe Appellants herein were charged with the offence of transporting forest produce without a movement permit, contrary to s. 52 (1) (a) as read with s. 55 (1) (c) of the Forests Act, 2005 (Act No 7 of 2005). The appellants herein were also charged with the offence of being in possession of forest produce subject to a Presidential ban, contrary to s. 34 (1) as read with s. 34 (2) of the Forests Act, 2005. The appellants were found guilty of transporting forest produce without a movement permit contrary to section 52; they were acquitted on the second count. They were sentenced to seven years imprisonment each. They appealed against the conviction and sentence.

Issuesi. Whether the High Court could interfere with the sentence where the accused persons were

found guilty, convicted and sentenced by the trial court.

Held1. Section 52 (1) of the Forests Act imposed an outright prohibition of the removal of forest

produce such as that which was the subject-matter. It followed that they had committed an offence under that Act, even though the Court had a discretion in the apportioning of sentence. The apportioning of sentence is a judicial function to be based on considered criteria, and on the circumstances of each case, subject to the terms of the enactment.

2. The evidence showed a possible lack of awareness of the unlawfulness of the transportation of timber in the instant case; and showed clearly that the author of the mischief was not before the Court. A fair sentence in those circumstances, would take into account the conduct of the accused persons at the material time, and would pay regard to the limits to sentencing imposed by law. An appropriate sentence, in the view of the Court, would have been much closer to the lower limit than the upper limit.

3. Considering that the appellants had already been in jail since they were sentenced on July 30, 2010, for just over six months, they had already served jail term for a period long enough to convey the lesson of required compliance with the law.

Appeal partly allowed. order issued that both appellants be released from prison, as they had served the requisite term.

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Factors to consider in granting non-custodial sentencing in wildlife crimes

Ezekiel Kirinyet v Republic

High Court at Nakuru October 29, 2010M J Anyara Emukule J


Criminal Procedure Code - sentencing - reduction of sentence - factors to consider before reducing sentence- non custodial sentence - factors to consider in issuing non-custodial sentence - appellant’s remorsefulness - Whether the Appellant deserved a non-custodial sentence - Criminal Procedure Code (cap 75), section 354(3)(a)(ii)

Brief facts The Appellant was convicted and sentenced to four years imprisonment for the offence of malicious damage to property contrary to section 339 (1) of the Penal Code. He appealed against the conviction and sentence. It was alleged that the Appellant was among a group of 20 illegal loggers who had entered into Kama Forest in Koibatek District within the Rift Valley Province, and were cutting down forest trees without licence.

The Appellant claimed that he was arrested on the day he went to pick cows when he saw people ran away, he also ran but was shot at by the Forest Ranger Officer. He denied confronting the officers, or damaging the firearm. The appellant was further found with a rifle, Mark 4 type as well as a Panga.

On appeal, the Appellant alleged that he was lured by wrong friend into breaking the law, and the friend who was the custodian of all the exhibits produced in court. He (the Appellant) further claimed that his friend fled away upon realizing that things had gone wrong.

The appellant mitigated for a non-custodial sentence, to enable him cater for his younger brothers and sisters.

Issuesi. Whether the Appellant was remorseful enoughii. Whether the Appellant deserved a non-custodial sentence

Held1. The Appellant deserved the benefit of doubt from his plea of remorsefulness.2. Pursuant to section 354(3)(a)(ii) of the Criminal Procedure Code, the appellant’s charges

reduced to three years from the original four years.

Sentence reduced to 3 years.

Ezekiel Kirinyet v Republic

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Peterson Njue Njeru & another v Maralal Snr Resident Magistrate & 2 others


Section 55 (1)(c) of the Forest Act, 2005 does not require mandatory forfeiture of suit items to the state


High Court at Nakuru January 29, 2010W Ouko, J

Judicial Review No 64 of 2009

Environmental Law – natural resources - forestry – claim where the accused persons had been charged with transporting protected tree species and sandal wood – claim where the trial court convicted and made an order of forfeiture of the vessel transporting the protected tree species and sandal wood to the state - whether in making the order of forfeiture of the lorry to the state, the trial court failed to give the applicants who were the owners of the lorry a hearing – Forests Act, 2005, section 55(1) (c).

Brief factsThe applicant filed the instant application seeking orders of certiorari to quash the decision of the trial court in which the trial court had ordered the forfeiture of motor vehicle Registration No KAU 745P to the Forest Service. The said vehicle had been held and the driver arrested for transporting protected tree species and sandal wood. The 1st applicant and the driver were then charged jointly with the offence of being in possession of sandal wood contrary to section 34(1) and (2) as read with section 55(1)(c) of the Forest Act. The 1st applicant was acquitted while the driver was sentenced and convicted. The trial court further ordered the forfeiture of the lorry to the state

Issuei. Whether in making the order of forfeiture of the lorry to the state, the trial court failed to give

the applicants who were the owners of the lorry a hearing.ii. Whether section 55 (1)(c) of the Forest Act, 2005 mandatorily requires forfeiture of the subject

items to the state.

Held:1. It was not automatic upon conviction under section 55(1)(c) of the Forest Act, 2005 for the

trial court to order forfeiture of the lorry to the state.2. An order of certiorari is issued by the High Court to quash a decision made by a public body

if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.

3. Implicit in the concept of fair adjudication lay two cardinal principles namely that no man should be a judge in his own cause and no man should be condemned unheard. Those two principles of natural justice had to be observed by the Courts save where their application was expressly excluded.

4. At the trial court, it was apparent that the lorry did not belong to the driver who was eventually convicted. The 1st applicant was as a matter of fact charged with the offence in question as the owner of the lorry. He was acquitted under section 210 of the Criminal Procedure Code. He therefore did not have the opportunity to explain his circumstances to the court.

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5. From the copy of the log book, it was also clear that the motor vehicle was registered in the joint names of Timu Sale and Stanbic Bank. Further, it was apparent that the applicants carried on business under the business name of Timu sales. In the result, without hearing persons having interest in the lorry, the trial court was in violation of the rules of natural justice. Consequently, an order of certiorari was necessary.

Order of certiorari issued to quash the decision of the trial court in so far as it related to the forfeiture of the lorry.

Further, the lorry was to remain under the custody of the Forest Service until the applicants or any other interested parties had been heard.


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Samuel Macharia Mwangi & another v Republic


A charge sheet must contain proper particulars


High Court at Nyeri 29, January 2009MSA Makhandia J

Criminal Appeal Nos 130 of 2007 & 131 of 2007 (Consolidated)

Criminal Practice and Procedure - charge - charge sheet - particulars of the offence - whether an accused could be convicted on a charge that lacked the elements of the crime.Criminal Practice and Procedure - charge - charge sheet - particulars of the offence - whether accused persons could be charged for poaching whereas the particulars of the offence related to hunting.

Brief factsOn the 6th day of November 2005, Kenya Wildlife Service Rangers were on patrol within Ragati forest when they heard dogs barking. They went in the direction that the dogs were barking from and found the 2 appellants slaughtering a Buffalo. They arrested them and recovered a spear, 2 pangas, a snare and 2 bags. Subsequently the appellants were charged on two counts under the Wildlife Conservation and Management Act, Cap 376 and on one count under the Trespass Act, Cap 294.

The first count was Poaching without authority contrary to section 34(1)(b)(v) of the Wildlife Conservation and Management Act, Cap 376. The second count was being in possession of game trophy contrary to section 39(7) of the Wildlife Conservation and Management Act, Cap 376. On the third count the appellants were charged with trespass upon private land contrary to section 3(1) of the Trespass Act, Cap 294.

At the trial court, the appellants denied the charges against them and gave a different set of facts. They claimed they were grazing cattle when the Kenya Wildlife Services officers arrested them, tortured them and presented them to the police. The appellants were convicted on counts 1 and 2 and sentenced to ten years imprisonment on each count. Being aggrieved by the trial court’s decision they filed the instant appeal.

Issuesi. Whether an accused could be convicted on a charge that lacked the elements of the crime.ii. Whether accused persons could be charged for poaching whereas the particulars of the

offence related to hunting.iii. Whether accused persons could be charged on a charge that was dependent on the minister

making regulations.

Relevant provisions of the lawThe Wildlife Conservation and Management Act, Cap 376.Section 34(1)(b)(v).(1) No person shall (b)for the purpose of or in connexion with hunting or assisting in hunting any animal,

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cause any fire or surround any animal with fire, or make, use or have in his possession any of the following things (v) any net, fence or enclosure;

Trespass Act, Cap 294.Section 3(1)

‘3. Trespass upon private land(1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.’

Held1. The charge sheet did not disclose an offence known under the law even if the provisions of

Wildlife Conservation and Management Act were to be invoked. The charge sheet talked of poaching whereas the particulars talked of hunting.

2. The appellants were found slaughtering a buffalo but were charged with illegal hunting. This implied that there was some hunting that was authorised and/or legal. The charge sheet was not specific to whether the appellants were authorised or unauthorised hunters. The charge sheet was also silent as to whether the appellants were illegally hunting and without a licence thereby making them poachers.

3. The appellants should have been charged under section 47 of the Wildlife Conservation and Management Act. However application of this section was dependent on the minister making regulations that dealt with possession or movement of game meat. No such regulations had been gazzetted by the minister.

4. The penalty provided for the offences that the appellants were charged with a fine of Kshs. 20,000 or imprisonment for a term not exceeding three years. The appellants were sentenced to ten years imprisonment each. The sentenced imposed was illegal.

Appeals allowed, convictions and sentences imposed on each appellant quashed


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Evans Luka Tarimo & another v Republic


Instances where the appellate Court can interfere with the conviction and sentencing by the trial court

Evans Luka Tarimo & another v Republic

High Court at Nairobi March 12, 2008 JB Ojwang, J

Criminal Appeal Nos 267 & 268 of 2007

Criminal Practice and Procedure - sentencing and conviction - discretion of the court where maximum sentencing iss provided by law - Whether the High Court could interfere with the sentence imposed by a trial Court and in what circumstances

Brief factsThe Appellants were charged with the offence of cutting down indigenous trees contrary to section 334(c) of the Penal Code. The appellants on October 23, 2005 at Oldonyowas, in Chyulu National Park, Makweni District, within Eastern Province, jointly, wilfully and unlawfully cut down 700kg of indigenous trees, namely East African sandalwood valued at Kshs 350,000, the property of the Government of Kenya.

The trial court had convicted the appellants on their own pleas having taken taking into account all the circumstances as well as the mitigation statements before imposing against each a jail term of four years, pursuant to the provisions of the Penal Code which provided for a maximum sentence of 14 years. The appellants argued that the four years jail term imposed on the appellants was excessive.

Issues Whether the High Court could interfere with the sentence imposed by a trial Court and in what circumstances

Held 1. Thesentencingdiscretionisdefinedbylaw,and,certainly,asentencewhichexceedsthe

prescribed maximum is an illegal one; but within the scope for lawful sentencing, the task felltothetrialCourttotakeintoaccountalltherelevantcircumstancesandtofixasentencethat, objectively perceived, carried merit.

2. Askewedorunjustifiableperceptionof relevantcircumstances,can lead toaharshandoppressive sentence which does not serve ends of justice; and such a sentence would be set aside by an appellate Count.

3. Likefindingsoffactwhicharepeculiarlywithintheprovinceofthetrialcourt,sentencingisessentially discretion of the same court. Where the trial court has acted on correct principles and has taken all the relevant factors into account, unless the sentence imposed is manifestly excessive, it is not open to the appellate court to interfere with such a sentence. In the instant case there was no basis for interfering with the four-year term of imprisonment imposed by the Magistrate’s Court, out of the much longer term of fourteen years provided for by law.

4. Even if the appellants committed the offences as they served a different person (who the prosecutionoffice,inresponsibledischargeofconstitutionalobligation,oughttoidentifyand to prosecute as well), they still fell afoul of the law, and thus deserved the penalty meted out by the trial Court.

Appeal dismissed. Conviction and sentence upheld

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Circumstances where an automatic forfeiture order can be issued

Muya v Republic

Court of Appeal at Nyeri May 14, 2004Tunoi, Githinji JJA and Ringera Ag JA


Criminal Practice and Procedure - forfeiture-forfeiture of property to the State-order of forfeiture of motor vehicle as a tool or implement used in committing the offence of illegally removing forest produce- whether the owner of the motor vehicle who was not an accused person was entitled to be heard before the order of forfeiture is made- Forests Act (cap 385) section 8, 14Environmental Law - forest conservation-offence of removing forest produce contrary to the law-court convicting the driver of a motor vehicle used to ferry logged camphor –court ordering forfeiture of the motor vehicle – whether the owner of the motor vehicle who was not an accused person was to be heard before the order of forfeiture was made. Forests Act (cap 385) section 8, 14Criminal Practice and Procedure - revision - revisionary jurisdiction of the High Court-whether and on what grounds a decision of the High Court in its revisionary jurisdiction is appealable to the Court of Appeal

Brief facts Two persons were charged in the subordinate court with the offence of cutting and removing forest produce contrary to the Forests Act. These persons were the alleged owner of the camphor beams in question and the driver of the motor vehicle in which they were being ferried. The driver told the Court that he had only availed his vehicle for hire and he did not know that the camphor had been illegally logged.

The trial court convicted the accused and in addition to sentencing them to a fine of Kshs. 10, 000 ordered the forfeiture of the motor vehicle. None of the accused persons appealed against the decision of the trial court.

Joseph Muya, the owner of the vehicle moved to the High Court asking it to revise the order of forfeiture. He argued that the motor vehicle that was to be forfeited belonged to him, that he was not an accused in the case and he was not given a chance to show the trial court whether the offending driver was his agent or not . The High Court declined to revise the order of forfeiture and appealed against the decision.

Issues i. What are the circumstances that can warrant an automatic forfeiture order?

Held 1. Under the Forests Act section 14 (2)(a)(b) and (c), a court trying the offence is entitled to make

an order for compensation and/or forfeiture in addition to any other penalty. An order for compensation may be made against that other person unless he shows after being given an opportunity to do so, that the offence was committed without his negligence or default.

2. No order for compensation was made in the instant case. The order which was made was for forfeiture under paragraph (c) of the afore-mentioned sectioned. There was no requirement

Muya v Republic

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Muya v Republic


under that provision that any person be heard before the tools or implement used in the commission of the offence were ordered for forfeiture.

3. An order made by the High Court in the exercise of its revisionary jurisdiction is deemed to be a decision of the High Court in its appellate jurisdiction and accordingly, the decision in the instant case was appealable to the Court of Appeal on matter of law.

Appeal dismissed

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Crimes of Stock theft and trespassing the National Park

Kitifia v Republic

High Court at Mombasa July 10, 1992Omolo, J


Criminal Law -offences-crime of trespass and stock theft- whether the offence of trespassing the National Park with stolen cattle was successfully proved-whether it was necessary to produce animals in court for individual owners alleging to have lost them to carryout identification - Wildlife Conservation and Management Act, 2013, section 13(2) (a), Penal Code (cap 63), section 278Evidence Law – standard of proof- whether the prosecution proved each count to warrant prosecution and conviction of the appellants-whether the offence of trespassing the National Park with stolen cattle was successfully proved

Brief facts Two accused persons; Papai Yaramo Ngoholo (Papai) and Makunga Kitifia (Makunga) were jointly charged before the resident Magistrate at Voi of two counts of stock theft contrary to section 278 of the Penal Code, and one count of trespass in the National Park Contrary to section 13(2) (a) of the Wildlife Conservation and Management Act. In addition Papai was charged with a third count of being unlawfully present in Kenya contrary to Section 13(2) of the Immigration Act. They were convicted on all these counts and sentenced accordingly.

The two of them appealed against their convictions. They were convicted on all these counts and sentenced accordingly. Overwhelming evidence was adduced alleging that the 2 Accused persons engaged in an attack that materialized to stock theft by the two accused persons. It was alleged that the two accused persons were among a group of 3 people who escaped with the cattle that was being grazed by two boys.

Upon the examination of evidence, the two were found guilty. The game wardens testified against the accused giving account of their arrest and were taken to Jipe Camp with the animals alleged to have been stolen by the accused. The two of them then appealed against their convictions.

It was apparent pursuant to the evidence that one of the accused (appellant Papai) was illegally in the Kenya since he did not have an identity card.

Issues i. Whether it was necessary to produce animals in court for individual owners alleging to have

lost them to identify themii. Whether the prosecution proved each count to warrant prosecution and conviction of the

appellantsiii. Whether the offence of trespassing the National Park with stolen cattle was successfully

provediv. Whether the charge of unlawful presence in Kenya against Papai was proved by the absence

of his identity cardv. Whether lack of possession of an identity card could mean that a person was not a Kenyan

Kitifia v Republic

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Kitifia v Republic


Held 1. It was true that the animals with which the appellants were arrested were not produced before

the Court as each appellant complained in his grounds of appeal, but the photographs of the animals were produced and the photographs were identified by all the witnesses who could have been expected to identify them.

2. The prosecution should have photographed the animals before releasing them to their respective owners, but it was to be remembered that a large heard, in all 77 beasts, were involved.

3. The two counts of stock theft were proved against each appellant beyond a reasonable doubt. On the 3rd count of trespass in the National Park, it was clear the two appellants were found in the park and they were there for illegal purpose i.e. walking through the park with stolen cattle. They obviously trespassed in the National Park.

4. The charge of unlawful presence in Kenya against Papai was never proved as it was merely alleged that he had no identity card or any other identifying document.

5. Lack of possession of an identity card could not mean that a person was not a Kenyan. A Kenyan could fail to register and that was a different offence under the Registration of Persons Act, but could not by itself make a person a non- Kenyan. The Republic could not therefore support the conviction of Papai on the aforementioned basis.

6. The sentences imposed on the charges of stock theft and trespass were reasonable and the trial court’s sentence ought not to be interfered with except that the learned magistrate failed to impose corporal punishment on the first counts of theft. Corporal punishment was mandatory under section 278 of the Penal Code

a. Each appellant should receive one stroke of the cane on each of the two counts, viz. counts 1 and 2, making a total of 2 strokes of the cane against each appellant.

b. Convictions based on the first, second and 3rd counts on Papai dismissedc. Appeal of Papai against conviction on the charge of being unlawfully present in Kenya,

quashedd. The conviction set aside e. The sentence and order of repatriation imposed.

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The Court Can Reduce or Increase A Sentence at the Hearing of an Appeal as on Conviction

John Kinyua Githinji v Republic


High Court at Nanyuki November 16, 2016M Kasango, J

Criminal Practice and Procedure –Sentencing – offences relating to trophies and trophy dealing – when an accused is convicted and sentenced of the offence being in possession of wildlife trophy – where the sentence term is shorter than what is prescribed in the Act – whether the Court could reduce or increase a sentence at the hearing of an appeal as on conviction – Criminal Procedure Code, section 354; Wildlife Conservation and Management Act, section 95.

Brief FactsThe Appellant was charged with the offences of being in possession of wildlife trophies contrary to Section 95 of Wildlife Conservation and Management Act (Act No. 47 of 2013) and possession of ammunition contrary to section 4(3)(b) of the Firearm Act. He was convicted and sentenced to pay a fine of Kshs. 1 million and in default to serve a five months imprisonment. Aggrieved by the decision the Appellant appealed challenging the conviction and sentence.

Issuesi. Whether the Court could reduce or increase a sentence during hearing of an appeal on

conviction.

Relevant provisions of the lawWildlife Conservation and Management ActSection 95 Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.

Held1. The mere fact that there were some variations in evidence did not ipso facto prove that the

evidence was false or unreliable. Indeed variation had to be expected in evidence that was true. Sometimes evidence without the slightest variation could be good indicator of coached witnesses.

2. In evaluating discrepancies, contradictions and omissions, it was undesirable for the Court to pick out sentences and consider them in isolation from the rest of the statements. The Court had to decide whether inconsistencies and contradictions were minor, or whether they went to the root of the matter.

3. It was the duty of the prosecution to prove the prisoner’s guilt, subject to the qualification involving the defence of insanity and to any statutory exception. If at the end of and on the whole of the case, there was a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether the offence was committed by him, the prosecution had not made out the case and the prisoner was entitled to an acquittal. No matter what


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the charge or where the trial, the principle that the prosecution had to prove the guilt of the prisoner was part of the common law of England and no attempt to whittle it down could be entertained.

4. The Prosecution proved on required criminal standard that the appellant had possession of the animal trophies that they were recovered from him. The prosecution provided evidence of the recovery of those trophies from the appellant and provided evidence of a scientist who confirmed that indeed they were animal trophies.

5. The prosecution failed to meet the standard of proof in respect to the second count of possession of ammunition contrary to section 4(3)(b) of the Firearm Act. The recovery of the alleged ammunition was well proved, just like the recovery of the trophies. However the prosecution failed to adduce evidence of a ballistic expert who needed to confirm that what was revered from the appellant was indeed ammunition as defined under section 2 of the Firearm Act. Such an expert would have testified on whether the items recovered from the appellant and alleged to be ammunition were capable of being discharged from or used with a firearm. In the absence of that expert evidence there was no basis convicting the appellant on the second count.

6. The trial court erred in the 5 months default sentence passed on the offence of possessing animal trophies contrary to section 95 of the Wildlife Conservation and Management Act. Appellant on being convicted on the first count was sentenced by the trial court to pay a fine of Kshs. 1 million and in default to serve a five months imprisonment. Clearly the default sentence did not conform to the provision of section 95 of Wildlife Conservation and Management Act. The Court had power under section 354 of Criminal Procedure Code to reduce or increase a sentence at the hearing of an appeal as on conviction.

Appeal partly allowed.

Ordersa. The sentence on first count set aside and replaced with a fine of Kshs. 1 million and in default

to serve 5 years sentence.b. The conviction on the second count quashed and sentence set aside.

kenya wildlife crimes case digest - wildlifedirect.org · wildlife crimes case digest : 2016 iii...

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